DEALERON TERMS AND CONDITIONS OF USE AND END USER LICENSE AGREEMENT
HONDA DIGITAL CUSTOMER EXPERIENCE PROGRAM
IMPORTANT NOTE TO SIGNATORY OF AUTHORIZATION: Thank you for submitting the signed Authorization form (“Authorization”) creating an Agreement (defined below) on behalf of your company under which DealerOn, Inc. (“DealerOn”) agrees to launch and provide and your company agrees to receive digital marketing services from DealerOn (“Services”), in conjunction with the American Honda Motor Co. (“Honda”) Honda Digital Customer Experience Program (“HDCX” or “Program”).These Terms and Conditions of Use and End User License Agreement (collectively, the “Terms”) and your signed Authorization, upon acceptance, form a binding legal contract between DealerOn and your company (sometimes referred to below as “Licensee”). Please note that your submittal of an Authorization authorizes DealerOn to immediately begin providing the Services you have elected to receive on Honda’s HDCX Administrator website and obligates your company to pay the applicable fees determined by the Honda HDCX Administrator pursuant to the Program and in accordance with these Terms.
IN ORDER TO RECEIVE ANY DEALERON DIGITAL MARKETING SERVICES AND/OR USE THE SOFTWARE, SERVICES, CONTENT, MAINTENANCE TOOLS AND WEB SITES (sometimes referred to below as the “Service” or the “Services”), YOU MUST FIRST AGREE TO THESE TERMS BY SIGNING THE AUTHORIZATION. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND THOSE OF THE CONFIRMATION OF AGREEMENT, OR ADD EXTRANEOUS TERMS, DEALERON MAY ACCEPT THE AUTHORIZATION (IN WHICH CASE EXTRANEOUS TERMS SHALL HAVE NO FORCE OR EFFECT WHATEVER) OR REJECT THE AUTHORIZATION (IN WHICH CASE DEALERON WILL NOT RENDER SERVICE AND YOUR USE OF ANY SERVICES IS STRICTLY PROHIBITED).
By submitting an Authorization on behalf of your company, you are representing that you have the authority to bind your company to a contract. Acceptance of your duly executed Authorization by DealerOn is subject to (a) your formal enrollment with Honda’s HDCX Administrator and (b) verification by DealerOn of your compliance with all terms, conditions and Program requirements. Before you continue, you should print or save a local copy of these Terms for your records.
The Terms consist of the General Terms and Conditions (the “GTC”) appearing below and the Special Terms and Conditions (the “STC”) specific to each Service, appearing after the GTC. The entire agreement between DealerOn and your company (the “Agreement”) consists of the Authorization and the Terms, as such Terms may be changed from time to time pursuant to the Agreement or the Program. In the event of a conflict between the GTC and the STC, the STC shall prevail. Please also note that DealerOn is a third party beneficiary of the Program terms and conditions that you agreed with the HDCX Administrator and you agree herein that DealerOn may exercise its rights thereunder in the same manner as if it were a party to that agreement.
The foregoing is hereby incorporated into and forms a part of the Authorization by this reference.
General Terms and Conditions
1. Provision of Services by DealerOn
1.1 DealerOn agrees to provide the Services to Licensee in accordance with the Order Form, this GTC and the other Terms of the Agreement. The definition of Services hereunder shall also include any online access to any enrollment portal, informational web pages, and/or online reporting service (collectively, the “Secure Web Services”) provided by DealerOn or its Affiliates. Use of the Services is subject to the applicable policies of DealerOn, its Affiliates or unaffiliated search engines, website or network advertising resources (each of such unaffiliated third parties, a “Third-Party Resource”) on which display ads, videos or other advertising media (“Advertisements”) are posted or displayed in connection with the Services, including without limitation any Third-Party Resource’s editorial guidelines, privacy policies, trademark guidelines, and ad specification requirements (“Policies”). Licensee agrees to comply with the Policies while the Agreement is in effect. DealerOn or its Affiliates may modify Advertisements to comply with any Policies in its sole discretion.
1.2 DealerOn has affiliated legal entities, contractors, subcontractors, vendors, suppliers and other third parties (collectively referred to as DealerOn “Affiliates” or when using the term “DealerOn” or “its” in these Terms, DealerOn is including its Affiliates, unless DealerOn specifically excludes them) that will provide Services to Licensee on behalf of DealerOn. Licensee acknowledges and agrees that DealerOn Affiliates will be entitled to provide the Services on DealerOn’s behalf, and that to the extent permitted by applicable law, DealerOn Affiliates shall be third party beneficiaries of this Agreement with respect to the Services provided to Licensee. In the event that the terms of service of a DealerOn Affiliate rendering a Service (or portion thereof) hereunder is in addition to or more stringent than the Terms, it is agreed and understood that such terms of the Affiliate shall apply or take precedence over these Terms.
1.3 DealerOn is constantly innovating to provide the best possible Services to Licensee. Licensee acknowledges and agrees that DealerOn can change the Services from time to time, without prior notice and as further provided below. Such changes may include, but will not be limited to, modifications necessary for correction of errors or omissions.
1.4 Licensee acknowledges and agrees that DealerOn may stop (permanently or temporarily) providing the Services (or any features within the Services) to Licensee at DealerOn’s sole discretion, without prior notice to Licensee. If Licensee wishes to stop using the Services at any time, Licensee agrees to provide DealerOn with prior written notice of Licensee’s intent to cancel the Agreement in accordance with the provisions of Section 8 below.
1.5 DealerOn may stop (permanently or temporarily) providing Services (or any features within the Services, including access to Licensee’s account) for non—payment of Service fees. Licensee acknowledges and agrees that if DealerOn stops providing Services, Licensee may be prevented from accessing some or all of the Services, Licensee’s account details or any files or other content which is contained in Licensee’s account. Licensee acknowledges and agrees that DealerOn will not be liable in any way for any inconvenience, delay, damages, losses or other claims related to the foregoing.
2. Use of the Services by Licensee
2.1 In order to access certain Services, Licensee may be required to provide information about itself and Licensee’s business (such as identification, billing or contact details). Licensee agrees that any information it gives DealerOn will always be accurate, complete and up to date.
2.2 Licensee agrees to use the Services only for purposes that are permitted by (a) these Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
2.3 Licensee agrees not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by DealerOn. Licensee specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers). Without limiting the foregoing, Licensee agrees not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of any Secure Web Service or other program associated with the Services.
2.4 Licensee agrees that it will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
2.5 Licensee agree that it will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
2.6 Licensee agrees that it is solely responsible for (and that DealerOn has no responsibility to Licensee or to any third party for) any breach of Licensee’s obligations under the Agreement and for the consequences of any such breach. Accordingly, Licensee agrees that Licensee will be solely responsible to DealerOn for all activities that occur under Licensee’s account and Licensee will notify DealerOn if the Agreement is breached or there are threatened claims against Licensee related to the Services provided under the Agreement.
2.7 Licensee understands and agrees that it is responsible for maintaining the confidentiality of passwords associated with any account Licensee uses to access the Services.
2.8 Licensee understands and agrees that it is responsible to maintain, as required under applicable law, policy or contract, the confidentiality of information that Licensee uses, is provided to Licensee or that Licensee obtains as a result of Licensee’s use of the Services.
2.9 Licensee shall at all times comply with all applicable laws, legislation, rules, regulations, governmental requirements and industry standards with respect to Licensee’s use of the Services and the performance by Licensee of Licensee’s obligations and the exercise of its rights hereunder, including, but not limited to, any applicable provisions of Title V of the Gramm Leach Bliley Financial Services Modernization Act of 1999 and regulations promulgated under that Act (collectively “GLB”) or other federal, state, and local laws, rules, regulations, and ordinances governing the privacy and security of customer information that apply to Licensee. Licensee agrees to protect and maintain the privacy of such information accordingly.
2.10 Licensee acknowledges that the Services DealerOn will be providing allow Licensee to designate authorized personnel to administer the Services, thereby granting certain rights and authorizations relating to, among other things, selection of, and preferences for, Services, Service levels (such as Adspend) and billing. Licensee agrees that it is solely responsible to DealerOn, or any of DealerOn’s Affiliates, as applicable, for any fees, costs or other expenses that may be charged by DealerOn, or any of DealerOn’s Affiliates, as applicable, related to any selections made by Licensee or Licensee’s designees.
2.11 Intentionally left blank.
2.12 The responsive website Service offered by DealerOn is based on its proven, proprietary website platform; only limited changes are made to adapt the website for use by Licensee. The completed website is made available for review and input by Licensee at the end of the onboarding process. At such time, Licensee shall have a limited opportunity to review the website to detect typographical errors, to supply missing Licensee information, and request similar non-material changes; provided, that the website Service cannot be understood by Licensee as entitling it to request material changes to the website nor to cause DealerOn to embark on customized website development on its behalf, such being outside the scope of the Terms. DealerOn will not customize its Services on an individual Licensee basis in the normal course of its business.
2.13 Licensee understands that part of the Services may include, among other things, the creation and posting of Advertisements on the World Wide Web and otherwise by DealerOn or DealerOn’s Affiliates on Licensee’s behalf. Licensee is solely responsible for all: (a) campaigns and budget allocation and management (creative or targets), whether generated by or for Licensee; and (b) web site content, services and landing pages that create links, or directs viewers, to any advertised services and products. Licensee understands and agrees that Advertisements may be placed on any website or property provided by a Third-Party Resource which DealerOn or DealerOn’s Affiliates may select, or Licensee may request. Licensee authorizes and consents to all such placements. DealerOn or DealerOn’s Affiliates may reject or remove any Advertisement for any or no reason. Licensee may not use or republish any Advertisements or other marketing materials provided to Licensee by DealerOn and/or any of DealerOn’s Affiliates without DealerOn’s prior written consent.
3. Content in the Services
3.1 Licensee understands that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which Licensee may have access to as part of, or through Licensee’s use of, the Services are the sole responsibility of the person or entity from which such content originated. All such information is referred to below as the “Content”.
3.2 Licensee acknowledges that Content presented to Licensee as part of the Services, including but not limited to user interface “look and feel” elements, creative assets, Advertisements, and incentives, may be protected by intellectual property rights which are owned or licensed by DealerOn or DealerOn’s Affiliates. Licensee may not modify, rent, lease, loan, sell, distribute, license or create derivative works based on any Content (either in whole or in part) unless Licensee has been specifically notified that it may do so by DealerOn or by the owners of such Content, in a separate written agreement that Licensee will provide to DealerOn.
3.3 DealerOn reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service in DealerOn’s sole discretion.
3.4 Licensee uses the Services at its own risk.
3.5 Licensee agrees that Licensee is solely responsible for (and that DealerOn has no responsibility to Licensee or to any third party for) any Content that Licensee or a third party create, transmit or display while using the Services and for the consequences of these actions (including any loss, liability, fine or damage which DealerOn may suffer) by doing so.
3.6 Licensee agrees that the Content on Licensee’s website and any Content Licensee provides to DealerOn in connection with the Services shall not contain anything that infringes copyrights, trademarks, publicity or any other rights of others; violates any law or regulation, is defamatory or libelous; is abusive, harassing, or threatening; is obscene, vulgar, or profane; or violates someone’s privacy. Licensee agrees to indemnify, defend and hold harmless the Indemnified Parties, from and against any and all Claims incurred by, borne by or asserted against any of the Indemnified Parties to the extent such Claims relate to, arise out of or result from Licensee’s breach of the provisions hereof.
4. Proprietary rights
4.1 Licensee acknowledges and agrees (a) that DealerOn and DealerOn’s Affiliates or licensors own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist), including all Content (with the sole exception of Content originated by Licensee, its OEM or a third party not affiliated with DealerOn or DealerOn’s Affiliates or licensors), and (b) that it will not at any time challenge the ownership rights of DealerOn or DealerOn’s Affiliates or licensors in or to the Services. Licensee further acknowledges that the Services contain information which is confidential and/or proprietary information of DealerOn, and that Licensee shall not disclose any such information without DealerOn’s prior written consent.
4.2 Nothing in these Terms gives Licensee a right to use any of DealerOn’s or DealerOn’s Affiliates’ or licensors’ trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, except in strict compliance with the license granted below.
4.3 Licensee agrees that it shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
5. Grant of Licenses from DealerOn and Use of Services by Licensee
5.1 Subject to Licensee’s compliance with all of the terms and conditions of the Agreement, DealerOn hereby grants Licensee a limited, restricted, revocable, non¬assignable, non-transferable, non-sublicensable and non-exclusive license to use the Services provided to Licensee for the term of the Agreement, including the proprietary software, trademarks, copyrights and other proprietary elements of the Service. This license is for the sole purpose of enabling Licensee to use and enjoy the benefit of the Services as provided for herein, in the manner permitted by the Agreement.
5.2 Whether owned by DealerOn, its Affiliates or licensors, Licensee may not (and Licensee may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software comprising the Services (the “Software”) or any part thereof, or any of the other proprietary elements of the Service, or allow any third parties to use the Services, or any portion thereof, in any way. By way of example, rather than limitation, Licensee shall not, nor shall Licensee permit others to: (a) modify, translate, transfer, reverse engineer, de-compile or disassemble the software, computer code, development methodologies or design features comprising the Services, (b) sublicense, circumvent, resell or re-brand all or any part of the Services, nor charge a fee or royalty for distribution, transmission or use of the Services (c) export or use Service data compilations, structures, or algorithms with another product; (d) remove or obscure any proprietary rights notices or labels on the Services (e) use any automated means (except those expressly made available or authorized by DealerOn, if any) including agents, robots, scripts, or spiders, to access or manage the Services, monitor or copy any websites or any content contained therein, or bypass or transfer to a third party provider DealerOn’s website, tools or Services in interference with or attempted interference with DealerOn’s rendering of the Services, (f) without the written consent and participation of DealerOn, modify, enhance, or improve the Services, (g) use the Services in an unethical or unlawful manner, violative of industry ethical practices, law, regulation or third-party property rights, (h) take any action that imposes an unreasonable or disproportionately large burden on DealerOn’s infrastructure, as determined by DealerOn in its discretion, and (i) reveal, transfer, disclose, or allow third parties to view, access or possess the source code for the Services (or any portion thereof), or related intellectual property or trade secrets, any of which shall constitute a default and/or material breach of the Agreement.
5.3 The services rendered by DealerOn’s Affiliates or licensors, incorporated into or entirely comprising a Service hereunder, may contain license terms specific to such services, and Licensee agrees to comply with all such license terms, including those appearing in any click through or shrink wrap license or of which Licensee should be aware by virtue of its selection and use of such products or services. It is Licensee’s obligation to review and accept or decline the terms of service required by such Affiliates or licensors. Such Affiliate or licensor services are hereby included in the definition of “Services” and shall be treated as Services hereunder to the maximum extent practicable; provided that, notwithstanding anything to the contrary contained herein: (a) Licensee acknowledges and agrees that the applicable Affiliate or licensor is the owner of such service, (b) the terms and conditions applicable to such service will govern in the event of a conflict with this Agreement and shall apply only with respect to the particular service, (c) compliance with the terms of service of such Affiliate or licensor is solely Licensee’s responsibility, (d) an Affiliate or licensor may enforce or exercise its rights directly hereunder with regard to its services to the same extent as DealerOn, (e) DealerOn makes no representation or warranty with respect to any such services, and (f) Licensee hereby releases DealerOn from any and all obligations, claims, demands, liability and damages of every kind and nature arising out of or in any way connected with its use of such services.
5.4 Licensee may not assign (or grant a sub—license of) Licensee’s rights to use the Software, or any of the other proprietary elements of the Service, grant a security interest in or over Licensee’s rights to use the Software or any other proprietary elements of the Service, or otherwise transfer any part of Licensee’s rights to use the Software or any other proprietary elements of the Service.
5.5 All rights not expressly granted herein to Licensee are reserved to DealerOn. The Agreement provides Licensee with only a limited right to use the Services and in no event shall be deemed to convey ownership of any intellectual property, proprietary programming, computer code, development methodologies, graphics, content, advertisements, website pages, features or otherwise, owned or licensed by DealerOn or its Affiliates or licensors.
5.6 Licensee is responsible for all activity relating to Licensee’s use of the Services and Licensee shall, and cause its employees, officers, and/or agents to (a) safeguard the source code for the Services, intellectual property and trade secrets using the same measures it uses to protect its own confidential information, but in no event less than reasonable care, (b) maintain the confidentiality of passwords associated with any account it uses to access the Services and notify DealerOn immediately of any unauthorized use of any password or account or any other known or suspected breach of security related to Licensee’s use of the Services, (c) comply with all applicable ethical standards, laws, rules, regulations, third-party contractual obligations and the Agreement in its ongoing use of Services, and (d) regularly review the Services to ensure they meet all legal, regulatory and third-party contractual compliance standards applicable to Licensee and otherwise comply with the Agreement. Licensee acknowledges and agrees that (e) any third party hardware, software or licensing costs required to implement and use the Services are Licensee’s sole responsibility and that it shall reimburse such if paid for by DealerOn, and (f) DealerOn is not responsible for maintaining Licensee’s compliance with any law, rule, regulation, order or third-party contractual compliance standard applicable to Licensee by law or imposed by Licensee’s contracts with third parties.
6. Content License from Licensee
6.1 Licensee retains copyright and any other rights Licensee already holds in Content which Licensee submits, posts or displays on or through, the Services. By submitting, posting or displaying the Content, however, Licensee grants to DealerOn and DealerOn’s Affiliates a perpetual, irrevocable, worldwide, royalty free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which Licensee submits, posts or displays on or through, the Services. This license shall be for the sole purpose of enabling DealerOn to display, distribute and promote the Services.
6.2 Licensee agrees that this license includes a right for DealerOn and DealerOn’s Affiliates to make such Content available to other companies, organizations or individuals with whom DealerOn has relationships for the provision of these Services.
6.3 Licensee understands that DealerOn, in performing the required technical steps to provide the Services to DealerOn’s users, may (a) transmit or distribute Licensee’s Content over various public networks and in various media; and (b) make such changes to Licensee’s Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. Licensee agrees that this license shall permit DealerOn to take these actions.
6.4 Licensee confirms and warrants to DealerOn that Licensee has all the rights, power and authority necessary to grant the above license(s).
6.5 Licensee further hereby authorizes DealerOn and any Third-Party Resource, and any such other third-party service provider that produces, collects or receives data pertaining to Licensee’s website, Licensee’s advertising activity, or any of Licensee’s other business activities, to transfer, provide or otherwise make available such data to DealerOn in connection with DealerOn’s providing the Services to Licensee hereunder.
6.6 In the event the performance of the Services requires DealerOn or DealerOn’s Affiliates to access Licensee’s computer systems to collect data or perform the Services, Licensee specifically requests and authorizes such access and will provide, and have all rights and authorizations required to provide, such access. Licensee understands and agrees that DealerOn and/or DealerOn’s Affiliates may engage a data polling service to poll and transmit data from Licensee’s DMS or other computer systems. Licensee hereby grants to DealerOn and DealerOn’s Affiliates a royalty-free, non-exclusive, non-transferable, non¬cancelable license to use sales and inventory data (to the extent available) obtained from Licensee’s computer systems solely for the purposes of a) performing the Services for Licensee, b) consumer, vehicle, and industry research and reference, c) evaluation of sales lead performance, d) combining with other data to create proprietary market price and incentive guides, and e) the generation of market analysis data and related products; provided, the sales and inventory data shall not be used to disclose to any third party Licensee’s name or the name of any consumer, and shall not be sold to any third party.
7. Payment for Services
7.1. Licensee agrees to pay the fees for the Services in the amounts set forth in the GM GlobalConnect enrollment website. The fees for the Services shall be billed to Licensee, and Licensee agrees to pay the fees for the Services as a debit through, and in accordance with the terms of, Licensee’s GM account; provided, that in the event billing through the GM account is not feasible, DealerOn may invoice Licensee directly for the Services and Licensee agrees to pay such invoice within 30 days of receipt, or such lesser period as may be applicable under the Agreement. Except as otherwise set forth in the Agreement, all charges for the Services will be due and payable as specified on and consistent with the payment terms of Licensee’s GM account.
7.2 In addition to the other rights reserved to DealerOn hereunder, DealerOn expressly reserves the right to terminate or suspend Licensee’s Services, in whole or in part, and disable Licensee’s access to the Services for non-payment of any invoice. Balances due on an outstanding invoice shall bear interest at 1.5% interest per month or the maximum rate permitted by law until paid in full. For past due invoices, Licensee agrees to pay all costs of collection, including collection agency fees, attorney fees and court costs.
7.3 All fees are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. Licensee assumes exclusive responsibility for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Services except for taxes based on the net income of DealerOn or its Affiliates.
8. Cancelling the Services
8.1 The Terms will continue to apply until the Agreement is terminated by either party as set out below.
8.2 If Licensee wishes to cancel Licensee’s Services with DealerOn, Licensee may do so by providing DealerOn with thirty (30) days’ advance written notice.
8.3 DealerOn may, at any time, suspend or terminate the Services or the Agreement, in whole or in part, if : (a) Licensee has breached any material provision of the Agreement or has acted in a manner which clearly shows that Licensee does not intend to, or is unable to comply with the provisions of the Agreement); or (b) DealerOn is required to do so by law (for example, where the provision of the Services to Licensee is, or becomes, unlawful);
or (c) the DealerOn Affiliate or licensor with whom DealerOn offered the Services to Licensee has terminated its relationship with DealerOn or ceases to offer the Services, or any part thereof, to Licensee; or (d) the provision of the Services to Licensee by DealerOn is, in DealerOn’s sole opinion, no longer commercially viable, or (e) DealerOn provides Licensee with thirty (30) days’ advance written notice of an intent to terminate Licensee’s Services or the Agreement, with or without cause.
8.4 The provisions of Sections 1.4, 2.5, 2.6, 2.8, 2.11, 2.12, 3.2, 3.5, 3.6, 4, 5.2, 6, 7.2, 8, 9,
10, 12 of this GTC and any other Terms of the Agreement or Order Form, which by their nature are intended to survive its termination, shall survive the termination of the Agreement.
9. EXCLUSION OF WARRANTIES
9.1 NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT THE WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN LICENSEE’S JURISDICTION WILL APPLY TO LICENSEE AND DEALERON’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.2 LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT LICENSEE’S USE OF THE SERVICES IS AT LICENSEE’S SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, DEALERON AND DEALERON’S AFFILIATES, AND DEALERON’S LICENSORS DO NOT REPRESENT OR WARRANT TO LICENSEE THAT: (A) LICENSEE’S USE OF THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS, (B) LICENSEE’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY LICENSEE AS A RESULT OF LICENSEE’S USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO LICENSEE AS PART OF THE SERVICES WILL BE CORRECTED.
9.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE AGREES THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
9.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM DEALERON, ANY OF DEALERON’S AFFILIATES, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
9.5 DEALERON FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEM ENT.
10. LIMITATION OF LIABILITY
10.1 SUBJECT TO OVERALL PROVISIONS ABOVE, LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT NEITHER DEALERON, NOR DEALERON’S AFFILIATES OR DEALERON’S LICENSORS SHALL BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY LICENSEE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY LICENSEE, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (A) ANY RELIANCE PLACED BY LICENSEE ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN LICENSEE AND ANY THIRD PARTY DURING LICENSEE’S USE OF THE SERVICES; (B) ANY CHANGES WHICH DEALERON MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (Ill) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH LICENSEE’S USE OF THE SERVICES; (C) LICENSEE’S FAILURE TO PROVIDE DEALERON WITH ACCURATE ACCOUNT INFORMATION; OR (IV) LICENSEE’S FAILURE TO KEEP LICENSEE’S PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. DEALERON’S LIABILITY HEREUNDER, IF ANY, SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY LICENSEE FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRE D. THE PARTIES AGREE THAT THAT THE AGGREGATE MAXIMUM LIABILITY OF DEALERON AND ITS AFFILIATES AND EACH OF THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND LICENSORS UNDER THESE TERMS FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY LICENSEE DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE LAST EVENT GIVING RISING TO LIABLITY.
10.2 THE LIMITATIONS ON DEALERON’S LIABILITY TO LICENSEE, ABOVE, SHALL APPLY WHETHER OR NOT DEALERON HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
11.1 LICENSEE AGREES TO DEFEND, INDEMNIFY AND HOLD GM, DEALERON, THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND LICENSORS HARMLESS FROM AND AGAINST ALL LOSS, CLAIMS, DEMANDS, CAUSES OF ACTIONS, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, BROUGHT BY ANY THIRD PARTY, AND INCLUDING COSTS, ATTORNEYS’ FEES AND EXPENSES, RELATING TO THE SERVICES PROVIDED UNDER THIS AGREEMENTAND/OR LICENSEE’S PRODUCTS AND SERVICES, AND/OR ARISING FROM OR RELATED TO A BREACH THESE TERMS OR ANY REPRESENTATION OR WARRANTY MADE BY LICENSEE UNDER THESE TERMS, BUT EXCLUDING CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF DEALERON OR OTHER PERSON OR ENTITY SEEKING INDEMNIFICATION.
11. Changes to the Terms
11.1 DealerOn may make changes to the Terms or put into place additional Terms from time to time at DealerOn’s discretion. When these changes are made, DealerOn will make a new copy of the Terms available on its website and update the version or revision date thereof.
11.2 Licensee understands and agrees that if it uses the Services after the date on which the T&C have changed or any additional terms have been added, DealerOn will treat Licensee’s use as acceptance of the updated T&C.
12. Miscellaneous legal terms
12.1 The Order Form and the Terms, including these General Terms and Conditions and the Special Terms and Conditions of each Service, in each case as they may be amended and updated from time to time, constitute the entire agreement between DealerOn and Licensee with respect to the subject matter hereof and thereof, govern Licensee’s use of the Services, and completely replace any prior agreements between Licensee and any other party in relation to the Services.
12.2 Licensee agrees that DealerOn may provide Licensee with written notice by e-mail, certified mail -return receipt requested or overnight mail (the latter two collectively referred to herein as “Mail”), delivered to any Licensee address appearing on its Order Form; provided however, that in the case of a change in DealerOn’s Terms, notice to Licensee may be effected by changing the Terms on DealerOn’s website and updating the version or revision date thereof, which shall be deemed written notice delivered to Licensee for all purposes. To be valid, any notice to DealerOn must be in writing and delivered only by Mail or Email to the applicable address appearing below:
If by Email: email@example.com
If by Mail:
Att.: Chief Operating Officer
7361 Calhoun Place, Suite 420
Derwood, Maryland 20855
12.3 Licensee agrees that DealerOn’s failure or delay in exercising or enforcing any rights or remedies that are available to DealerOn under the Agreement (or that DealerOn has the benefit of under any applicable law or otherwise) shall not be deemed to be a waiver of any of DealerOn’s rights or remedies and that all of such rights and remedies will remain available to DealerOn.
12.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of the Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Terms. The remaining provisions of the Agreement will continue to be valid and enforceable.
12.5 The Agreement, and Licensee’s relationship with DealerOn under the Agreement, shall be governed by the laws of the State of Maryland without regard to its conflict of laws provisions. Licensee agrees to submit to the exclusive jurisdiction of the courts located within the State of Maryland to resolve any legal matter arising from the Agreement Notwithstanding this, Licensee agrees that DealerOn will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
12.6 GM and the affiliates and licensors of GM and DealerOn shall be deemed third party beneficiaries of the indemnification and limitation of liability provisions of the Agreement. Except as expressly set forth herein otherwise, there are no, and shall not be any, third party beneficiaries of the Agreement.
12.7 Force Majeure. Each party hereto shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or unavailability of electrical power, heat, light, air conditioning, computing or information systems or telecommunications equipment or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any date data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.
12.8 Licensee may not assign the Agreement without the prior written approval of DealerOn. The Agreement may be freely assigned by DealerOn. The Agreement shall be binding on and inure to the benefit of the parties and their respective successors and approved assigns.
Special Terms and Conditions of DealerOn Digital Advertising Service
1. Concordance; Precedence: These Special Terms and Conditions of Service (“STC”) apply specifically to the Digital Advertising Service (“DAS”) rendered pursuant to the Agreement. This STC shall be read, to the extent practicable, in concordance with all other terms of the Order Form and the GTC; provided, however, that this STC shall control in the event of a conflict. Defined terms used but not defined herein shall have the meaning ascribed to them in the GTC and/or the Order Form.
2. Confidential Information: It is understood and agreed by the Parties that the commercial terms contained in the Order Form and any modification thereto, as well as DealerOn-generated DAS reports, recommendations and other DAS-related confidential, commercially sensitive, proprietary and/or consumer information exchanged by the Parties, shall be deemed to be confidential information as contemplated in the GTC and shall receive the confidential treatment accorded to such information therein.
3. Commencement Date: The “Commencement Date” for purposes hereof shall be the first day of the calendar month in which the DAS Campaign launches.
4. Digital Advertising Service:
a. Summary: DAS broadly encompasses search engine marketing, display, retargeting, reporting and other digital marketing functions and the various components relating to each. The specific components contracted herein appear in the Order Form (“Service”). DealerOn will employ its extensive, automotive digital marketing expertise on an on-going basis to monitor automotive sales markets and the requirements of third party-owned publishers, advertising networks, directories or other web site advertising services and search engines, such as that of Google, Inc. (“Third-Party Resources”), and create, develop, install, manage, maintain and optimize a customized digital advertising campaign utilizing the Service (“Campaign”) and deliver the Campaign utilizing Third-Party Resources as the delivery vehicle. As more particularly described below, DealerOn manages the Campaign on an on-going basis, focusing efforts and resources among the components of the Service most likely to maximize results in the reasonable exercise of its expert judgment; as a consequence, it is understood that DealerOn may not utilize all aspects or components of the Service at any given time. DealerOn offers three Service packages (the Service selected by Licensee appears in the Order Form).
b. Digital Basic DAS Package: Basic features:
• Paid search on Google, Bing, Yahoo
• Mobile campaigns on Google, Bing, Yahoo
• Retargeting on Google via Remarketing Lists for Search Ads (RLSA) &
New vehicle model campaigns (3)
c. Digital Plus DAS Package: In addition to Basic features:
• Google Display Network (GDN)
• New vehicle model campaigns (5)
• Custom SEM landing pages
• Display marketing on GDN
• Dynamic VIN-based campaigns including monthly incentives & offers
• Custom-designed display and remarketing creatives (3)
d. Digital Premier DAS Package: In addition to Plus features:
• ROI Match-back to track calls/leads to sales/service
• New vehicle model campaigns (7)
• Social media advertising
• Facebook-optimized campaigns for sales & service
• Custom audience creation for Google and Facebook
5. Display and Retargeting Service: In the event the contracted Service includes DealerOn’s Display and Retargeting Service (“Display” and “Retargeting,” as applicable), and the other terms and conditions of Service, DealerOn will launch (a) the Display Campaign, after creative deliverables are generated for Licensee and (b) the Retargeting Campaign, after Licensee’s retargeting audience reaches the minimum size.
6. Campaign Management Overview: DealerOn’s Campaign management program consists of a significant level of pre-launch activities, allowing DealerOn to stand ready to launch a Campaign(s) during the Term hereof at the option of Licensee subject to the terms hereof, and a heightened level of activity after launch. Program activities include ongoing market research, search term and competitive analysis, resource targeting, spend management, negative keyword discovery, and revised text ad copy as part of overall account reorganization. Optimization of ads, ad groups and keywords based on performance are ongoing elements of the program. By way of example, this includes pausing ad groups/keywords that are not performing in order to re-allocate appropriate Adspend to higher performing areas, evaluating and recommending landing page improvements and providing impression share reporting and making recommendations to Licensee.
7. Onboarding: Prior to the Commencement Date, DealerOn will conduct an onboarding Q/A with Licensee and analyze Licensee input, such as Licensee needs, target cities, top performing zip codes, advertising radius, phone number forwarding, marketing phrases, competitors, and the like. Licensee shall timely and reasonably cooperate with DealerOn in providing the required onboarding information in a reasonably timely manner, so as to allow DealerOn sufficient time to undertake the activities necessary to meet the proposed Commencement Date. In the event the Third-Party Resource on which the Service is to be rendered has been previously contracted by Licensee, Licensee shall obtain the necessary access to such Third-Party Resource for DealerOn; DealerOn’s obligation to provide Service is subject to receipt of such access. After commencement, the Parties will continue to cooperate in like manner during the Term. For this purpose, Licensee’s primary contact appears on the Order Form. Subject to receipt of this information from Licensee, DealerOn will make reasonable efforts to meet the proposed Commencement Date (and subsequent monthly launches during the Campaign), build Campaigns customized to Licensee needs and continuously optimize such Campaigns in response to market forces, so as to maintain near-launch-ready Campaigns for Licensee throughout the Term hereof. All of these pre-launch activities will allow DealerOn to stand ready to launch a Campaign in the short time frame required by the markets, at Licensee’s request in accordance with the terms hereof. After initial launch, DealerOn will continue these activities and implement additional aspects of the Service, including gathering metrics, performance analysis and increased levels of management activity- strategy development, Campaign optimization, platform maintenance and client communication.
8. Use of Material for Promotional Purposes: During the Term hereof, Licensee grants DealerOn the right to use Licensee’s work in producing the Campaign for promotional purposes and/or to cross-link it with other advertising developed by DealerOn. Licensee shall retain all of its intellectual property rights in any text, images or other components it owns and delivers to DealerOn for use in the Campaign. In like manner, DealerOn shall retain all of its intellectual property rights in any text, images or other components it owns and utilizes in the Campaign and delivers to Licensee, subject to any applicable law or policy to the contrary. Each Party shall be responsible to the other for ensuring that it owns or possess the rights to intellectual property shared in accordance herewith.
9. Campaign Adspend; Initial Adspend; Commencement Date; Adspend Changes; Adspend Change Process; Authorized User:
a. The initial amount specified by Licensee to be spent by DealerOn in advertising on Third-Party Resources, for each calendar month of Service comprising the Campaign (“Adspend”), is set forth in the Order Form. The initial Adspend amount shall remain in effect for the remainder of the Term, unless changed in accordance with the immediately following section b. Similarly, any change in the Adspend shall remain in effect for the remainder of the Term, unless subsequently changed in accordance with said section b. Licensee may elect to reduce Adspend in accordance with said section b; provided, however, that it is agreed and understood that Adspend may not be eliminated or reduced to a level lower than that amount of Adspend which has already been spent or committed to Third-Party Resources. Subject to the other terms and conditions hereof, Adspend shall be entirely spent on Third-Party Resources in delivering the Campaign and amounts not spent in a given month shall be applied in succeeding months during the Term. As a result, it is agreed and understood that Adspend is not refundable to Licensee.
b. Licensee may request a change to the amount of the Adspend by communicating such at least five (5) business days in advance. DealerOn’s approval of the change shall be subject to (i) such requested Adspend amount being greater than or equal to the amount of Adspend which has already been spent or committed to Third-Party Resources and (ii) the availability, or in lieu thereof, the receipt of the requested Adspend amount (and applicable fees) at least five (5) business days prior to the day in which the change in Adspend is to take effect, all in accordance with the process set forth in the immediately following section c. Subject to the foregoing, it is agreed and understood that DealerOn shall not unreasonably withhold approval of Adspend amounts requested by Licensee, including requests for an Adspend amount of a minimum of (500.00) dollars.
c. Subject to the immediately preceding section b., Licensee may seek to change its Adspend by informally communicating a request that DealerOn initiate a two-step change process: (i) DealerOn will formulate a change proposal document in response to Licensee’s request (“Change Proposal”) and make such Change Proposal to the Authorized E-mail of Licensee; (ii) Licensee may accept such Change Proposal by promptly evidencing unequivocal acceptance (i.e., without varying the terms of the Change Proposal and otherwise following the instructions therein) in a reply to the Authorized E-mail of DealerOn (Change Confirmation). In the authorized Email section of the Order Form, Licensee designates the company e-mail address(es) of an authorized user duly empowered by Licensee to receive Change Proposals to the amount of the Adspend and to accept such proposals by e-mailing Confirmation of Adspend changes. Licensee shall fully cooperate with DealerOn in its efforts to record and administer all such authorizations in a manner that is compliant with GM audit and third-party information security requirements. For its part, DealerOn hereby designates as its “Authorized E-mail” the company e-mail of the DealerOn representative actually e-mailing the Change Proposal; such DealerOn representative is authorized to formulate and make Change Proposals to the amount of the Adspend and to receive e-mail Confirmation of Adspend changes. Each Party hereby adopts its respective Authorized E-mail address as the “signature” of its duly authorized representative for purposes hereof. Either Party may change its Authorized E-mail address from time to time by providing the other Party written notice thereof in accordance with notice provisions of this Order Form or by following the change process set forth herein. Except for a possible change to an Authorized E-mail address, it is agreed and understood that only the Adspend amount may be changed pursuant to the change process set forth herein; in no event shall a Change Proposal and/or Confirmation be deemed to bind the Parties in any other regard or to amend this Agreement.
d. With regard to the change process set forth in the immediately preceding section c., the Parties agree that e-mails bearing an Authorized E-mail address of the sending Party may be deemed by the receiving Party to be a writing originated, signed and delivered by the duly authorized representative of the sending Party. Pursuant to the foregoing, Licensee understands and agrees that Confirmations received by DealerOn, from an Authorized E-mail address designated by Licensee, may be deemed by DealerOn to be a writing originated, signed and delivered on behalf of Licensee; in like manner, DealerOn understands and agrees that Change Proposals received by Licensee, from an Authorized E-mail address designated by DealerOn, may be deemed by Licensee to be a writing originated, signed and delivered on behalf of DealerOn. DealerOn and Licensee hereby agree that each Party will protect its own and Third-Party Resource account access credentials and designated Authorized E-mail address password(s) from unauthorized access. As regards the Authorized E-mail accounts, each Party will be solely responsible for any password dissemination, e-mail sharing permissions, account access delegations and similar access to Party-designated Authorized E-mails within such Party’s business organization. Neither Party will contest or assert a defense to the validity or enforceability of an agreed Adspend change by raising issues of fact or law relating to 1) the authority of the employee, agent, attorney-in-fact or any other person utilizing the Authorized E-mail address(es) designated by such Party and/or 2) the execution or delivery of Change Proposals or Confirmations signed and delivered by electronic means in the manner provided for herein.
10. Management Fee: Changes in Fee Amount: The fees appearing on the Order Form and GlobalConnect portal are quoted as a percentage of Adspend and such are subject to change without notice prior to acceptance of the Order Form by DealerOn; thereafter, such fees are subject to change in accordance with the GTC. Licensee shall compensate DealerOn for the Adspend amount and Management Fee in the amounts set forth in the Order Form and GlobalConnect portal. The monthly recurring fee for over-all management of the DAS Campaign (“Management Fee”) is for the various Services comprising the package chosen by Licensee and appearing on the Order Form. The Management Fee is dependent on the Service Package and the amount of Adspend in any given month. The Management Fee which applies to the first month of Service is disclosed in the GlobalConnect portal and Order Form. The Parties understand and agree that any Licensee change in Adspend for a given month may cause a corresponding change in the amount of the Management Fee for such month and subsequent months.
11. Reporting: After the initial month of the Campaign, DealerOn will make updated monthly reports available to Licensee through DealerOn’s online reporting platform during the Term. DealerOn will stand ready to conduct, and encourages Licensee to schedule, a monthly performance review call with DealerOn’s Digital Advertising Manager.
12. Nondisclosure and Confidentiality: It is understood and agreed by the Parties that DealerOn-generated DAS reports, keyword lists and other DAS-related confidential, commercially sensitive and/or proprietary information exchanged by the Parties shall be deemed to be “confidential information” as contemplated in the GTC and shall receive the confidential treatment accorded to such information therein.
13. Service Disclaimers: Licensee acknowledges the following with respect to the Service:
a) Third-Party Resources that may be utilized by DealerOn in rendering the Service are not owned or controlled by DealerOn; as a result, DealerOn cannot accept responsibility for any negative impact due to the policies maintained or instituted by such Third-Party Resources.
b) Many of the Third-Party Resources DealerOn may utilize are competitive in nature and DealerOn is therefore unable to guarantee position, consistent positioning, or specific placement of any particular pay-per-click keyword, phrase or search term.
c) Pay-per-click advertising may be subject to the individual policies and procedures of Third-Party Resources; each edit or change made to any resources employed by DealerOn may repeat these inclusion times.
d) Third-Party Resources utilized by DealerOn may block, prevent or otherwise stop accepting submissions for an indefinite period of time.
e) Any Third-Party Resources utilized by DealerOn may drop listings from its database for no apparent or predictable reason; DealerOn will re-submit resources to the Third-Party Resource based on the current policies of the Third-Party Resource in question.
f) DealerOn will make reasonable efforts to discover and keep Licensee informed of any changes that impact the Campaign and the execution thereof; provided, that despite the exercise of reasonable care, DealerOn may not become aware of changes to Third-Party Resources, industry dynamics, market factors or any other change that may affect the Campaign.
g) The Parties agree that the excuse for failure or delay in performance by a Party, appearing in the Force Majeure paragraph of the GTC, resulting from any cause beyond the reasonable control of a Party, such as “third party nonperformance,” shall be specifically understood to encompass any cause due to the action or inaction of Third-Party Resources, over which a Party has no control.
14. Billing & Payment: Licensee agrees to pay all fees set forth in the Order Form for use of the DAS Services specified therein in accordance with the GTC and Agreement. DealerOn hereby appoints The Advertising Checking Bureau, Inc. as its agent for purposes of billing and payment. The parties agree that monthly fees and Adspend will be withdrawn by Agent from Licensee’s iMR account. DealerOn may replace such agent at any time in its sole discretion. In any event, DealerOn may elect to invoice and collect directly from Licensee in accordance with the GTC. Changes in Adspend effected within the calendar month will be accounted for in a submission to The Advertising Checking Bureau, Inc. or, at DealerOn’s option, by invoicing and collecting directly from Licensee; the Adspend change submission or invoice is immediately due and payable upon receipt and will reflect the new Adspend for the month or the incremental change in Adspend and any change in Management Fee, if applicable. The rendering of the Service is subject to receipt by DealerOn of all fees and timely DealerOn access to Adspend funds each month, as well as compliance with all other Terms of the Agreement. Failure of Licensee to timely pay Adspend as contemplated herein shall not excuse Licensee’s obligation to pay fees hereunder. Nothing herein shall be interpreted as requiring DealerOn to “front” Adspend for a Campaign or render Service, should Licensee fail to timely pay Adspend within the delays contemplated herein. In the event of non-payment, DealerOn may set-off its fees from any other Licensee funds and avail itself of the other remedies available under the Agreement.
Special Terms and Conditions of DealerOn Search Engine Optimization Service
1. Concordance; Precedence; Definitions: These Special Terms and Conditions of Service (“STC”) apply specifically to DealerOn’s Search Engine Optimization (“SEO”) Service rendered pursuant to the Agreement. This STC shall be read, to the extent practicable, in concordance with all other terms of the Order Form and the GTC; provided, however, that the STC shall control in the event of a conflict. Defined terms used but not defined herein shall have the meaning ascribed to them in the GTC and/or the Order Form.
2. Confidential Information: It is understood and agreed by the Parties that the commercial terms contained in the Order Form and any modification thereto, as well as DealerOn-generated SEO reports, recommendations and other SEO-related confidential, commercially sensitive, proprietary and/or consumer information exchanged by the Parties, shall be deemed to be confidential information as contemplated in the GTC and shall receive the confidential treatment accorded to such information therein.
3. Commencement Date: Shall be the date that DealerOn contacts Licensee to begin the onboarding process contemplated in paragraph 9 of this STC.
4. Search Engine Optimization Service Summary:
a) Summary: DealerOn’s SEO Service is intended to serve three main purposes: 1) to provide the Client with increased exposure in third party-owned search engines, such as that of Google, Inc. (“Third-Party SEs”); 2) to drive targeted online traffic to the website; and 3) to promote the website to achieve optimum rankings on Third-Party SEs. The SEO Service broadly encompasses various components. DealerOn will employ its extensive, automotive digital marketing expertise on an on-going basis to monitor automotive sales markets and the advertising practices of Third-Party SEs. DealerOn will then optimize Licensee’s website on Third-Party SEs by:
i) Engaging in on-boarding activities with Licensee, with a view to receiving from License all necessary information, access and other requirements for rendering the additional aspects of SEO Service that follow;
ii) Researching keywords and phrases to select appropriate, relevant search terms that will optimize the amount of potential website traffic;
iii) Obtaining links and citations to the website from relevant websites and directories in order to generate relevancy signals and increased traffic to the website;
iv) Editing and/or optimizing of text for various html tags, meta data, page titles, and page text as necessary;
v) Analyzing and updating website structure, navigation, code, and the like, employing SEO best practices to achieve optimum results;
vi) Adding web pages or content, in cooperation with Licensee, as necessary for the purpose of increasing local relevance;
vii) Posting daily, if reasonably practicable, on social media outlets to increase engagement with followers of such;
viii) Engaging in social media consultation with Licensee to guide Licensee efforts in making postings which contribute to continued social exposure and success;
ix) Managing Licensee’s on-line reputation by monitoring online reviews and engaging in monthly consultations with Licensee, so as to promote continued influx of positive reviews; and
x) Creating and submitting monthly traffic and ranking reports detailing website traffic and rankings in major Third-Party SEs.
DealerOn manages the SEO Service on an on-going basis, focusing efforts and resources among the components of the Service most likely to maximize results in the reasonable exercise of its expert judgment; as a consequence, it is understood that DealerOn may not utilize all aspects or components of the Service at any given time. DealerOn offers three Service packages (the Service selected by Licensee appears in the Order Form).
b) Premier SEO Package: DealerOn’s Premier Package is designed for dealers in the most competitive markets who need to squeeze every ounce out of their local organic search, social media, and overall reputation management in order to be successful. Licensee will receive local optimization in 4 areas: 1) on-site signals, 2) off-site signals, 3) social media, 4) reputation management, and reporting.
On-site signals — DealerOn conducts a full audit consisting of meta data, URL, and content audits, then creates specific, targeted meta data, URLs, and content for any products or services where needed for maximum local exposure. Content will also be optimized and adjusted on an ongoing basis for maximum performance in local searches. Licensee will also receive one custom blog post per week, model research pages for all models in order of importance, as well as four model comparison pages per year. In addition, DealerOn uses visual analytics and image compression tools in order to promote the visitors’ path to conversion and optimize website images.
Off-site signals — DealerOn builds relevant links to the Licensee’s website, with an additional focus on local links. A full citation audit is included, and all incorrect or incomplete citations (mentions of name, address, and phone number on other sites) are cleaned up. With link building being one of Google’s top ranking factors, DealerOn’s team will build a robust link and citation profile month to month, focusing on building up Licensee’s domain authority and improving Licensee rankings. DealerOn also conducts monthly back link profile monitoring and cleanup to mitigate Licensee website penalties relating to Google updates.
Social media management — Licensee receives daily posts on Facebook and Twitter, with a focus on increasing local engagement with followers. Incoming comments or inquiries are answered by DealerOn’s team, and the team also consult with Licensee’s social team to help maximize the effectiveness of all social efforts.
Reputation management – DealerOn’s team consults with Licensee to build an effective strategy for increasing positive online reviews; review sites are monitored daily. DealerOn’s team helps create appropriate responses to minimize damage from any negative reviews as well as crafting keyword optimized thank you responses for positive reviews.
Reporting – Licensee is kept up to date with the progress of SEO service with monthly reports in PDF format that clearly show important metrics for success. Licensee also has unlimited email access to DealerOn’s SEO team and can call during normal business hours.
c) Plus SEO Package: DealerOn’s Plus SEO Package is designed for dealerships in moderate to highly competitive markets who need active local SEO management and desire a strong social media presence. Licensee will receive local optimization in 4 areas: 1) on-site signals, 2) off-site signals, 3) social media 4) reputation monitoring, and reporting.
On site signals — DealerOn conducts a full audit consisting of meta data, URL, and content audits, then creates specific, targeted meta data, URLs, and content for any products or services where needed for maximum local exposure. Content will also be optimized and tweaked on an ongoing basis for maximum performance in local searches. Licensee will also receive two custom blog posts per month, model research pages for the top 8 models in order of importance, as well as two model comparison pages per year. Additionally, DealerOn uses visual analytics and image compression tools in order to promote Licensee’s visitors’ path to conversion and optimize website images.
Off-site signals — DealerOn builds relevant links to the Licensee’s website, with an additional focus on local links. A full citation audit is included, and all incorrect or incomplete Citations (mentions of Name, Address, and Phone number on other sites) are cleaned up. With Link Building being one of Google’s top ranking factors, DealerOn’s team will continue to build a robust link and citation profile month to month focusing on building up Licensee’s domain authority and improving Licensee’s rankings across the board. DealerOn also conducts monthly back link profile monitoring and cleanup to mitigate Licensee website penalties relating to Google updates.
Social media management — For DealerOn’s Plus SEO Package, Licensee receives 4 posts on Facebook and Twitter per week with a focus on increasing local engagement and followers. Incoming comments or inquiries are monitored by DealerOn’s team and we consult with the Licensee’s social team to help maximize the effectiveness of all social efforts.
Reputation monitoring — DealerOn’s team identifies new reviews quickly and consult with Licensee to discuss ways respond to reviews in order to construct a positive online perception. Review sites excluding Yelp are monitored on a daily basis.
Reporting – Licensee is kept up to date with the progress of DealerOn’s Plus SEO service with monthly calls and a monthly PDF report that clearly shows important metrics for success. Licensees also has unlimited email access to DealerOn’s SEO team and can call during normal business hours.
d) Base SEO Package: DealerOn’s Base SEO Package is designed for dealerships in low to moderately competitive markets who need basic local SEO management and require a local social media presence. Licensee will receive local optimization in 3 areas: 1) on-site signals, 2) off-site signals, 3) social media, and reporting.
On site signals — DealerOn conducts a full audit consisting of meta data, URL, and content audits, then creates specific, targeted meta data, URLs, and content for any products or services where needed for maximum local exposure. Content will also be optimized and tweaked on an ongoing basis for maximum performance in local searches. Licensee will also receive one custom blog post per month and model research pages for their 4 core models.
Off-site signals – On DealerOn’s Base package, DealerOn will create and curate Licensee’s Google My Business and Bing listings keeping Licensee’s information accurate and up to date. DealerOn also conducts monthly back link profile monitoring and cleanup to mitigate Licensee website penalties relating to Google updates.
Social media management — For DealerOn’s Base SEO Package, Licensee receives 1 post on Facebook and Twitter per week with a focus on generating local engagement and followers. Incoming comments or inquiries on GMB are answered by DealerOn’s team, and the team also consults with Licensee’s social team to help maximize the effectiveness of social efforts.
Reporting – Licensee is kept up to date with the progress of DealerOn’s Base SEO service with bi-monthly calls and a monthly PDF report that clearly shows important metrics for success. Licensee also has unlimited email access to DealerOn’s SEO team.
5. Licensee Requirements for Rendering of SEO Service: DealerOn will render the SEO Service described in the preceding paragraph in accordance with all Terms of the Agreement, generally, and subject to the specific terms contained in this paragraph. For the purpose of receiving the Service, Licensee hereby agrees to provide the following:
a) Administrative/backend access to the website for analysis of content and structure;
b) Authorization to make changes for the purpose of optimization, and to communicate directly with any third parties, such as Licensee’s web designer, if necessary;
c) Unlimited access to existing website traffic statistics for analysis and tracking purposes;
d) Access to a unique Licensee email address for the purposes of requesting links (e.g.: seo@Licensee.com);
e) Authorization to use client pictures, logos, trademarks, web site images, pamphlets, content, and the like for any use deemed necessary by DealerOn for search engine optimization purposes; and
f) Additional text content in electronic format for the purpose of creating additional or richer web pages, in the event that DealerOn determines that Licensee’s website is lacking in textual content.
6. Ownership of Promotional Material and other Intellectual Property: Licensee grants DealerOn the right to use Licensee’s work and marks in rendering the Service for promotional purposes and/or to cross-link it with other advertising developed by DealerOn. Licensee shall retain all of its intellectual property rights in any text, images or other components and marks that it owns and delivers to DealerOn for use in rendering the Service. In like manner, DealerOn shall retain all of its intellectual property rights in any text, images or other components and marks that it owns and utilizes in rendering the Service and delivers to Licensee, subject to any applicable law or policy to the contrary. Each Party shall be responsible to the other for ensuring that it owns or possesses the rights to intellectual property shared in accordance herewith. As between the Parties, each Party agrees that the intellectual property made available by the other Party, in the rendering of the Service, is the sole property of such other Party and that it will not contest the ownership rights of such other Party in its intellectual property. In no event shall DealerOn’s ownership of its SEO Service be deemed to be in any way transferred, by virtue of this Agreement.
7. Service Fee: Licensee shall compensate DealerOn for the Service in the amounts set forth in the Order Form (as may be modified pursuant to the GTC), in accordance with the payment terms set forth in the GTC, and subject to this paragraph. The Services and fees appearing in the Order Form are quoted in U.S. dollars and such are subject to change without notice prior to acceptance of the Order Form by DealerOn; thereafter, such are subject to change in accordance with the GTC. The rendering of the Service during the term of the Agreement is subject to receipt by DealerOn of the fee by the Commencement Date, and thereafter, on a timely basis prior the beginning of each month of Service, as well as compliance with the other terms and conditions hereof.
8. Service Disclaimers: Licensee understands and acknowledges the following with respect to the Service:
a) DealerOn does not own or control Third-Party SEs; as a result, DealerOn cannot accept responsibility for any negative impact due to the policies presently maintained, or instituted in the future, by such Third-Party SEs relating to the type of sites and/or content that they accept, or otherwise. The Licensee’s website may be excluded from any directory or search engine at any time at the sole discretion of Third-Party SEs.
b) Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, Licensee cannot guarantee top ranking or consistent top 10 positions for any particular keyword, phrase, or search term.
c) Google, Inc. has been known to hinder the rankings of new websites or pages until such have proven their viability to exist for more than a few months of time; Licensee assumes no liability for this practice, commonly referred to as “Google Sandbox,” and similar practices on Third-Party SEs.
d) Third-Party SEs will occasionally drop listings for no apparent reason and the listing will often reappear without intervention; such occurrences are neither predictable nor within the control of Licensee.
e) DealerOn cannot be responsible for the outcomes of Licensee’s election to link to or obtain a link from any particular website without prior consultation with DealerOn; linking to “bad neighborhoods” or obtaining links from “link farms” can seriously damage all SEO efforts.
f) DealerOn cannot be responsible for changes made to the website by Licensee or any third party that adversely affect the website’s search engine rankings; by way of example, rather than limitation, the over-writing of DealerOn SEO work on the website.
g) DealerOn will make reasonable efforts to discover and keep Licensee informed of any changes that impact the Service; provided, that despite the exercise of reasonable care, DealerOn may not become aware of changes to Third-Party SE policies or practices, industry dynamics, market factors or any other exogenous change that may affect the Service.
h) The Parties agree that the excuse for failure or delay in performance by a Party, appearing in the Force Majeure paragraph of the GTC, resulting from any cause beyond the reasonable control of a Party, such as “third party nonperformance,” shall be specifically understood to encompass any cause due to the action or inaction of Third-Party SEs, over which a Party has no control.
9. Onboarding: Upon the Commencement Date, DealerOn will begin rendering the Service by undertaking on-boarding activities with Licensee, with a view to receiving all necessary information, access and other requirements for rendering the SEO Service from License. Licensee shall cooperate and coordinate with DealerOn in meeting these requirements in a reasonably timely manner, so as to allow DealerOn to undertake the other aspects of the Service. The Parties will continue to cooperate in like manner during the term of the Agreement to administer and coordinate the rendering of the Service. For this purpose, Licensee designates a primary contact on page 1 of the Order Form, which Licensee authorizes for the purposes hereof. Subject to Licensee compliance with all Terms for the rendering of SEO Service, DealerOn will make reasonable efforts to implement the SEO Service within a reasonable time.
10. Billing & Payment: Licensee agrees to pay all fees set forth in the Order Form for use of the SEO Services specified therein in accordance with the GTC and Agreement. DealerOn hereby appoints The Advertising Checking Bureau, Inc. as its agent for purposes of billing and payment. The parties agree that monthly fees will be withdrawn by Agent from Licensee’s iMR account. DealerOn may replace such agent at any time in its sole discretion. In any event, DealerOn may elect to invoice and collect directly from Licensee in accordance with the GTC.
Special Terms and Conditions of DealerOn Website Accessibility Service
1. Concordance; Precedence: These Special Terms and Conditions of Service (“STC”) apply specifically to the Service appearing on the Enrollment Form as “accessiBe ADA Tool” (the “ADA Service” or simply, the “Service”) rendered pursuant to the Agreement. This STC shall be read, to the extent practicable, in concordance with the applicable terms of the Agreement and the GTC; provided, however, that this STC shall control in the event of a conflict. Defined terms used but not defined herein shall have the meaning ascribed to them in the GTC and/or the Agreement.
2. Commencement Date: Shall be the actual date on which the Service is implemented.
4. Licensee Requirements for Receiving ADA Service: DealerOn will provide the ADA Service described in the preceding section in accordance with the terms and conditions of the Agreement, generally, and subject to the specific terms of this STC. For the purpose of receiving the Service, Licensee must have contracted DealerOn’s Website Service.
5. Onboarding: Upon the Commencement Date, DealerOn will seek to secure installation and implementation of the Service from accessiBe.
6. Service Fee: Licensee shall compensate DealerOn for the Service in the amounts set forth in the Agreement, in accordance with the payment terms set forth below. The rendering of the Service during the Term is subject to receipt by DealerOn of Fees on a timely basis, as well as compliance with the other terms and conditions hereof. The term “Fee” as used herein shall be understood to include either, or both: (a) the recurring calendar-monthly Service Fee and (b) any one-time Set-up Fee for adapting the Service to Licensee’s website, necessary for rendering the recurring calendar-monthly Service. The Parties understand and agree that all Fee terms of the GTC, which do not conflict with the foregoing, shall also be applicable.
7. Service Disclaimers: Licensee understands and acknowledges the following with respect to the Service:
a) Given the non-core nature of this Service, DealerOn offers no warranty (including that the Service will cause Licensee’s website content to comply with laws applicable to Licensee). For clarity, DealerOn and Licensee each continue to remain responsible for compliance with the laws applicable to each in accordance with the terms of this Agreement; in no event shall the offering of this Service be deemed to make DealerOn, accessiBe, an OEM, an OEM representative or any other party responsible for compliance with laws for which Licensee is responsible; neither is the Service intended, nor shall it be deemed, to be legal advice to Licensee by either DealerOn, accessiBe or any other third party.
b) DealerOn cannot be responsible for the accessibility impacts of changes or additions made to the website by Licensee, its contractors or any other third party; by way of example, rather than limitation, the over-writing or changing of DealerOn or accessiBe work on the website or the addition of pop-up advertisements or other services contracted by Licensee with third party advertising providers or agencies.
c) DealerOn will make reasonable efforts to discover and keep Licensee informed of any Licensee changes that impact accessibility; provided, that despite the exercise of reasonable care, DealerOn may not become aware of changes made by Licensee or third parties unaffiliated with DealerOn or any other exogenous change that may affect the accessibility of the website.
8. Billing & Payment: Licensee agrees to pay all fees set forth in the Order Form for use of the ADA Services specified therein in accordance with the GTC and Agreement. DealerOn hereby appoints The Advertising Checking Bureau, Inc. as its agent for purposes of billing and payment. The parties agree that monthly fees will be withdrawn by Agent from Licensee’s iMR account. DealerOn may replace such agent at any time in its sole discretion. In any event, DealerOn may elect to invoice and collect directly from Licensee in accordance with the GTC.
Attachment to Special Terms and Conditions of DealerOn Website Accessibility (ADA) Service
You are invited to contact the Company regarding any topic by filling out the referral form found on the “Contact Us” page of the Website.
b. “Licensee” means whomever purchases a License for the Services, enabling its Users to access and use the accessiBe Systems on accessiBe’s Website in order to receive the Services.
c. “User” means whomever Licensee authorizes to makes use of the accessiBe Systems, directly or indirectly, including another person or entity using the accessiBe Systems on behalf of the Licensee.
d. “accessiBe Systems” means the AI-based systems for automatically rendering websites accessible using advanced algorithms, including machine-learning and context-reading, as operated by the Company under the “accessiBe” brand, and including the Website and any accompanying system used by the Company to provide the Services.
e. “Standard” means WCAG 2.1.
g. “Services” means the website accessibility services provided by the Company through the accessiBe Systems.
h. “Website” means accessiBe’s website at https://accessibe.com
Use of the accessiBe Systems
2. When using the accessiBe Systems or receiving the Services, you may not impersonate a different person or business organization;
3. You may not copy, use or allow another party to use, any content from the accessiBe Systems, whether electronic or print publications, or the like, for any purpose, whether commercial or otherwise;
4. You may not take any action that may impact the design of the accessiBe Systems, including the content appearing therein;
5. You may not: (i) copy, modify, create any derivative work of; or (ii) reverse assemble, decompile, reverse engineer or otherwise attempt to impact upon or derive source code (or the underlying ideas, algorithms, structure or organization);
6. You may not activate (or allow to be activated) any computer program or other means, including crawler robot programs or similar, for the purpose of searching, automatically recovering, scanning, duplicating or copying the capabilities, materials or contents appearing in the accessiBe Systems. Without derogation, this prohibition includes the creation of, or the use of such means, in order to create databases or collections that include content or information originating in the accessiBe Systems;
7. You may not manipulate the URL address of accessiBe Website pages with the intent of reaching accessiBe Website pages to which you do not have direct access (URL hacking);
8. You may not present content from the accessiBe Website or Service inside an IFrame, whether visible or not, or as part of a website for which you do not have a License (i.e., a mirror), or as part of any other service.
9. You may not present content originating in the accessiBe Systems in any manner, including without limitation, through any software, device, protocol or accessory, that changes the design as it appears in the accessiBe Systems, or deletes any content or information;
10. You may not create links to the accessiBe Systems from any website containing illegal or inappropriate content, including without limitation, pornographic content, content inciting or intending to incite racism, illegal activity or unlawful discrimination, or any other contents that are published contrary to applicable law;
11. You may not link to content on the Website that is not on the Website’s homepage (“deep links”), nor present or publicize such contents in any other manner, unless such “deep link” is to the entire Website, as is, allowing the User to use and view the Website in exactly the same manner as if they were using or viewing the Website directly. You may not link to content on the Website that is disconnected from the web pages on which they appear (for example, you may not link directly to a picture appearing on the Website, but rather, only to the entire Website on which it appears). Similarly, the full address of the web page within the Website must appear in the usual place designated for it. You may not change, edit, distort or conceal this address, nor replace it with any other address;
12. You may not load, send or broadcast to or through the use of the accessiBe Systems, any content containing any type of computer virus or other computer code programmed to limit the use, destroy or disrupt the accessiBe Systems, including without limitation, any of the computers, servers, hardware or software used by the Company to operate the accessiBe Systems and to provide the Services;
13. You may not overload the servers through which the accessiBe Systems are operated and/or the Services are provided, with e-mail, including by way of example, spam mail;
14. You may not change, process, adapt, sub-license, translate, sell, reverse-engineer, deconstruct or reconstruct any part of the code comprising the accessiBe Systems;
15. You may not breach or impair, in any manner, any intellectual property rights existing in the accessiBe Systems, including without limitation, copyrights, patents, trademarks, or any other proprietary rights, whether belonging to the Company or otherwise;
16. You may not use any robot, spider, information search-and-recover engine, or any other automatic or manual tool intended to recover, index or locate information in the accessiBe Systems, nor any tool of this kind programmed to expose the code structure or database of the accessiBe Systems;
17. You may not cut-off or attempt to cut-off, in any manner, the operation of the accessiBe Systems, including without limitation, by disrupting the functional operation of the Company’s servers and/or the Company’s communications systems and/or any part of its hardware and/or software supporting the operation of the accessiBe Systems or the provision of the Services;
19. The accessiBe Systems and the Services are provided “as is,” and are only intended to be used by the Licensee on the website for which Licensee has obtained a License. For the avoidance of doubt, the Licensee is not permitted to transfer and/or sell its License to any other third party.
1. Upon purchasing the Services from the Company, the Licensee shall receive a License for the accessiBe Systems for the purpose of receiving Service on one website only (the “License”). As part of the Service, Company will deploy a script into Licensee’s website code which imbeds the accessiBe Systems plug-in onto Licensee’s website. For the avoidance of doubt, it is clarified that after the script has been embedded, no further use of the script and/or the License may be made for any other domain name or any other website operated by the Licensee. The Licensee will be required to purchase a new dedicated License from the Company for any other website.
2. Upon purchasing a License, the Licensee agrees and confirms that it is engaging in a “Software as a Service” agreement (“SaaS”), whereby it purchases a User License for the accessiBe Systems in order to embed the end-user interface (i.e., plug-in) of the System into a specific website, with the accessiBe Systems installed and operated from the Company’s servers. The Licensee is not purchasing the accessiBe Systems or any part thereof, including without limitation, the code and/or supporting files and/or databases and/or any other component of the software that, either jointly or severally, comprise the accessiBe Systems.
3. The accessiBe Systems are only compatible for use by users on the following operating systems and browsers: Chrome, Firefox, Safari, Microsoft Edge, Internet Explorer 11, Android 8, and iOS10. The functionality of the accessiBe Systems requires that the Licensee websites in which they are embedded be websites based solely on HTML files and tags, and that the source code be written according to the Standard of the World Wide Web Consortium (“W3C”), without any errors or validation warning in W3C’s troubleshooting inspections; please note that Licensee changes to such website may impact the functionality of the Service. By way of example, he accessiBe Systems do not support other components, such as Canvas, Flash and/or SVG.
5. Following completion of the purchase, the Company will create a User profile for the Licensee on the accessiBe Website, and the login information will be sent promptly to the User e-mail address provided during the purchase process. Concurrently, Company will deploy a script into Licensee’s website code embedding the accessiBe Systems plug-in onto the Licensee website for which the License was purchased.
1. “Cookies” are small text files transferred from an internet server to a device in use by a User (a computer, mobile or similar). Cookies are not computer software and cannot read the information they contain, nor can they perform any actions independently. Cookies are used for rapid identification, so that the Company’s servers can quickly and efficiently identify returning Users, or a User’s visit to other websites.
2. Licensee agree to allow the Company to implant one or more Cookies, to identify information using the Cookies and to use the information found in the Cookie files in connection with rendering the Service. Some of the Cookies used by the accessiBe Systems may originate from third parties, including Google Analytics and/or Facebook Pixel and/or YouTube.
3. Cookies are used in all of the accessiBe Systems in order to allow the smooth and functional operation of all of the accessiBe Systems and/or in order to collect various data (such as statistical data regarding the use of the accessiBe Systems), to verify information and for data security purposes. Disabling the option to save Cookies in a browser may cause the accessiBe Systems to operate at less than functional or optimal capacity.
4. The Company will not use any information stemming from Cookies to identify a person individually.
Website Accessibility; Malfunctions; Issues
1. The Company exerts best efforts to that, within 48 hours of the date the accessiBe Systems are embedded into the Licensee’s website, the Licensee’s website will become substantially accessible in accordance with the provisions of the Standard, and that proof of completion of the accessibility rendering process is sent to the e-mail address provided by the Licensee during the purchase process. Nonetheless, it is possible that, for reasons arising from the Licensee’s website and/or changes and updates that may be performed, from time to time, by the Licensee, the User and/or their representatives on the Licensee’s website and/or for other reasons beyond the control of the Company, the Licensee’s website may not be substantially accessible at any given time.
3. The Company grants solely to the Licensees, and solely during normal business hours, technical support services, including assistance in operating the accessiBe Systems, solutions to malfunctions in the accessiBe Systems, use of the personal User account and similar technical and operational matters.
4. Licensee agrees to cause its User to report any malfunction or issue observed in the accessiBe Systems immediately to the Company by e-mail; upon receipt of such report, the Company undertakes to investigate the malfunction in a reasonably prompt manner.
5. The Company shall employ its best efforts to resolve malfunctions in the accessiBe Systems in a reasonably prompt manner. In the event that the technology needed to resolve an issue does not exist, or in the event that its implementation is not possible, the Company shall document the issue in its records and resolve it once this becomes possible on a technological level, subject to and in accordance with the Company’s undertakings toward the Licensee.
6. The Company does not undertake to manage and/or resolve malfunctions or issues originating in the Licensee’s website. For the avoidance of doubt, under no circumstances will any changes be made to the code in the Company’s systems and/or platforms in order to adapt them to the peculiar needs of a Licensee’s website.
Limitation of Liability; Licensee Responsibility
2. From time to time, the Company may update and/or upgrade the accessiBe Systems (including the Company’s servers), which may cause a temporary interruption in the provision of the Services. The Company has no control over malfunctions that may occur, from time to time, in respect of the availability of the Services included in the accessiBe Systems, nor over services provided by third parties.
3. The Licensee is aware that the installation of the accessiBe Systems cannot guarantee that claims will not arise, and that embedding the accessiBe Systems in the Licensee’s website does not, on its own, fulfill all of the requirements of applicable law in respect of website accessibility (accessiBe does not remediate PDF files or create subtitles for videos, for example). The Company does not undertake that the Licensee’s website will be 100% accessible at any given moment, owing to factors such as Licensee changes made to the website, issues originating in the Licensee’s website and /or limitations stemming from technological reasons. The Licensee irrevocably waives any claims against the Company from any liability, legal or otherwise, and that it shall assert no claims against the Company in this regard.
4. It is the Licensees’ responsibility to verify, prior to using the accessiBe Systems, that the accessiBe Systems are compatible with its needs and the Licensee shall have no claim regarding any incompatibility of the accessiBe Systems with its needs.
5. It is the Licensee’s responsibility to verify, prior to using the accessiBe Systems, the integrity of its website’s connectivity, and that of the server on which it is stored, to the internet network and to Licensee’s infrastructure (telephone, computer and so forth). The Company shall not bear liability for any damage to the Licensee on account of the foregoing issues, for which Licensee is responsible.
6. Without derogating from the foregoing, the Licensee agrees that, in any event, the Company’s liability towards it will be limited to a sum equal to the aggregate payments made by the Licensee to the Company in the six (6) months preceding a claim or alleged breach, and no more.
7. The Company is not responsible for the contents of documents and/or graphics files and/or other data found on the Licensee’s website, including with respect to copyrights and/or patents and/or trademarks and/or accessibility of texts, pictures, attached PPT, EXCEL, WORD, PDF, audio, video, VIMEO or YouTube files, nor files of any other video provider, nor any other file of any kind for which Licensee is responsible.
8. The Company is not responsible for any loss and/or expense and/or damage incurred by the Licensee and/or any third party on account of its rendering the Licensee’s website accessible, and full and exclusive liability in this regard remains with the Licensee. Similarly, the Company is not responsible for re-organizing the Licensee’s website after the accessiBe Systems have been embedded. The Company shall not bear any responsibility for any damage, inconvenience or loss incurred by the Licensee, directly or indirectly, as a result of its use of the accessiBe Systems and the embedding thereof in the Licensee’s website.
10. Without derogating from the release and limitation of liability set out above, in no event shall Company be responsible, and the Licensee exempts the Company from, any liability and/or duty and/or demand and/or claim arising prior to the completion of the accessibility rendering process on the Licensee’s website through the use of the accessiBe Systems.
11. In addition, and without derogating from the generality above, the User shall indemnify and hold harmless the Company for any sum the Company bears and/or is required to incur for matters that are the User’s responsibility, in addition to legal expenses, attorneys’ fees and other costs, to the extent applicable, within 30 days of receiving the Company’s first written demand.
12. Licensee acknowledges that it must make adjustments in the configuration of the accessiBe Systems after adding new content and/or new components and/or new pages and/or using new technologies on its website, and to ensure that tags or “selectors” on which the accessiBe System is based are not changed.
13. The accessiBe Systems, based on software, hardware, and communications networks, are exposed to the inherent risks of such systems, including the risk of malicious software (viruses, trojan horses, etc.), wiretapping, hacking by hostile entities, impersonations and other online systems and scams. The Company invests its efforts in defending against these risks. Nonetheless, it is not possible, and the Licensee is aware that it is not possible, to ensure complete immunity, and there may be damages and/or losses incurred in the event that such risks are realized, including disclosure and/or corruption of information provided and/or presented in the accessiBe Systems, corruption of instructions/requests, unauthorized account actions, disruptions to the operation of the accessiBe Systems and/or their response time, including interruption, partial performance and/or late performance of instructions/requests, unavailability of accessiBe Systems or the Services, etc., by virtue of such unlawful third party interference.
14. No conversation or correspondence with any Company employee or representative and/or other information provided by the Company shall be considered legal advice, and the Licensee shall have no claims to the contrary.
1. The intellectual property rights, including copyrights and trademarks (should any exist) in the accessiBe Systems or the Services or any other content included in the accessiBe Systems or the Services (“Company IP”) belong solely to the Company, or to the third party that provided its permission for the Company to use them. You may not copy, distribute, publicly display, publicly perform, transfer to the public, amend, process, create derivatives of, sell or lease any part thereof, whether by yourself or in cooperation with any third party, in any way or using any means, whether electronic, mechanical or optical, using photographic or recording means, or through any other means, without receiving the prior written consent of the Company and/or the other rightsholders, as applicable, and subject to the terms of such consent (if any). This provision is also valid in respect of any processing, editing or translation performed by the Company on content input or provided by the User to the accessiBe Systems. For the avoidance of doubt, and without derogation from the generality above, the databases, software, code, systems and applications, graphics files, media and audio files, written content, code content and other materials, including designs and graphics, relating to the Company IP also belong to the Company, and it holds the exclusive rights thereto.
3. If and to the extent that consent is granted for the use of the Company IP, the User must refrain from removing, deleting or obscuring any notice or symbol concerning Company IP rights, such as copyright symbols (©) or trademarks (®) that accompany the content being used by the User.
5. Upon purchasing a License, the Licensee approves the Company’s disclosure of the fact that it provided and/or provides the Services to the Licensee, and that the accessiBe System is embedded in the Licensee’s website.
6. The provisions of this intellectual property clause shall apply notwithstanding the cessation of the provision of the Services upon the conclusion of the License, for any reason.
7. The provisions of this section do not derogate from the provisions of any law or from any rights afforded the Company by law.
Termination or Suspension of Services
1. The Company may suspend or terminate the Services, in whole or in part without prior notice, or limit or terminate a User’s access to the accessiBe Systems and the Services, in the event of one of the following instances (without derogating from any other remedy afforded the Company by law):
3. If the Company is unable to verify and/or validate information provided by a Licensee or User or if Company reasonably believes the information provided by a Licensee or User is incorrect or inaccurate, in both such instances after Company makes reasonable efforts to communicate with a Licensee or User without avail;
4. If the Company reasonably believes that a Licensee or User’s use of the accessiBe Systems and/or the Services is giving rise to monetary risk and/or fraud of any kind and/or raises concerns of such; or
5. If the Company reasonably believes that a Licensee’s or User’s actions may cause a monetary loss and/or payment and/or create legal liability for the Company towards any third party.
Choice of Law; Venue