LOTLINX TERMS OF SERVICE
The Parties hereby agree as follows:
1. Defined Terms. For purposes of these Terms of Service, the following terms will have the respective meanings set forth below. All other capitalized terms will have the meaning ascribed to such terms elsewhere within this Agreement:
1.1 “Application” means the mobile and/or web-based application that enables You to use the Application Services.
1.2 “Application Services” means certain LotLinx products and services that may be available via a web-based or mobile application.
1.3 “Billing Day” means the date LotLinx will bill You for Your use of the Application Services as specified under Your LotLinx Application Account information. This term applies to LotLinx Application Accounts.
1.4 “Campaign(s)” means the (i) marketing campaigns provided for You by LotLinx wherein LotLinx delivers site visitors to Your website and (ii) the marketing campaigns paid for by You to a party authorized to engage in marketing initiatives on Your behalf.
1.5 “Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
1.6 “Dealer” means the entity dealership or rooftop participating in the LotLinx Services, but also includes Your affiliates, and any Rooftops owned by You.
1.7 “Dealer Content” means the data and content, including the inventory and inventory related data, images, Your logos, marks, trademarks and Your other intellectual property, that You submit to LotLinx.
1.8 “LotLinx Application Account” means the account created by You through the Application when enrolling in the Application Services.
1.9 “LotLinx Services” means LotLinx’s proprietary digital marketing platform and services which, among other things, delivers in-market vehicle shoppers to dealership vehicle detail pages and provides reporting and analytics on vehicle shopper activity.
1.10 “LotLinx Service Content” means all copyright rights and other intellectual property rights in the LotLinx Services and/or Application Services, including but not limited to any data, information, text, photos, images, graphics, code, marks, logos, audio, video, footage, animations, analyses, studies, downloads, and other content contained in this Agreement.
1.11 “Media Deposit” means the amount LotLinx spends to purchase media on Your behalf when you enroll in the LotLinx Services and You agree to reimburse LotLinx for the purchase of such media.
1.12 “Master Services Agreement” or “MSA” means the agreement found at https://www.lotlinx.com/dealership-enrollment which is incorporated by reference and made an integral part herein.
1.13 “Core Investment” means the recurring monthly budget minimum that is the greater of $1995 or the initial MSA amount.
1.14 “Initial Commitment Term” means the minimum number of days required to enroll in LotLinx Services at the then-current Core Investment as set forth in the MSA and herein.
1.15 “Publishers” means affiliates and/or online publishers that LotLinx has a relationship with.
1.16 “Rooftop” means one URL associated with a dealership at one physical address.
1.17 “Service Providers” means a third party that is authorized to act on behalf of LotLinx.
2.1 LotLinx Services. You agree to pay the Monthly Core Investment for the LotLinx Services in the amounts and for the term set forth in the MSA and any subsequent fees that You and LotLinx may agree to from time to time. Certain services may be subject to a setup fee. Prior to the launch of the LotLinx Services, LotLinx may require a Media Deposit. Fees will be detailed in an invoice related to the Services. Fees will be due and payable on the 1st of each month. LotLinx may increase fees by giving You at least thirty (30) days written notice prior to the effective date of the fee increase.
2.2 LotLinx Application Services. You agree to pay the fees for the Application Services in the amounts set forth in the package selected by You and any subsequent fees that LotLinx and You may agree to from time to time. Certain services may be subject to a setup fee. Fees will be charged monthly, on your Billing Day, to the payment method You provided when You registered for the Application Services. You agree to maintain a valid payment method during the term of Your use of the Application Services. LotLinx may use a third party to process payments, and You consent to the disclosure of Your payment information to such third party. Should Your Billing Day fall on a Sunday, You will be charged the following day. LotLinx may increase fees by giving You at least thirty (30) days written notice prior to the effective date of the fee increase. All payment obligations are non-cancelable, and all fees paid are non-refundable, except as specifically provided for in this Agreement.
2.3 Late Fees. If You fail to pay any fees owed to LotLinx under this Agreement in a timely manner, LotLinx may (i) charge and collect from You a finance charge equal to the lower of 1.5% per month or the maximum amount permitted by law, (ii) immediately interrupt or permanently terminate all LotLinx Services and/or Application Services without notice, and (iii) recover from You all costs incurred in connection with collection of past due amounts (including, but not limited to collection agency fees and reasonable attorney fees).
2.4 Taxes. All fees are subject to applicable sales, use, excise or similar taxes (collectively, “Taxes”), whether or not such Taxes are included at the time the fees are billed. You assume exclusive liability for, and will pay before delinquency, all Taxes, other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the LotLinx Services and/or Application Services except for taxes based on the net income of LotLinx or the Services Provider.
3. Changes to Your Services.
3.1 LotLinx Services. You may change Your LotLinx Services in accordance with the Services Policies provided when you create your LotLinx account.
3.1.1 You may adjust Your monthly budget, however, it may never be reduced below the Core Investment.
3.1.2 Any reductions to Your monthly budget must be made prior to 12 midnight of the 10th day of the then-current month. Reductions to Your monthly budget after the 10th day of the month will take effect on 12:01 a.m. on the 1st day of the following month. No reduction may fall below the Core Investment. A reduction in Your monthly budget will result in a credit to your account. There are no refunds. You may increase Your monthly budget at any time during the month.
3.1.3 You may pause Your LotLinx Services at any time prior to 12 midnight on the last day of the month. LotLinx Services may be paused for up to two calendar months, only. Your LotLinx Services will automatically resume at 12:01 a.m. on the 1st day of the month following Your instructions to reactivate Your account or the expiration of the two calendar month paused account time limit.
3.2 Application Services.
3.2.1 Subscription. You may change your subscription at any time. If You change Your subscription to a higher priced subscription, the subscription change will be effective immediately, and You will be billed pro-rata for the subscription change on the day You make the subscription change. Changes in Your subscription will not change Your Billing Day. If You change Your subscription to a lower priced subscription, the subscription change will take effect on Your next Billing Day.
3.2.2 Additional Rooftops. The Application can support the Application Services for multiple Rooftops. If You intend on using the Application Services for multiple Rooftops, You will need to purchase individual subscriptions to the Application Services for each Rooftop for which You intend on using Application Services.
3.3.3 Campaign Budgeting. When allocating Your Campaign budget, You can select what percentage to apply towards the Application Services. Full Campaign budgets in the Application experience may be shown as a whole number, rounded to the nearest dollar. Any amounts that do not divide evenly will be shown on the Application Services side of the Application experience.
4. Dealer Account, Password, and Security.
4.1 LotLinx Services. LotLinx will provide You a non-exclusive, revocable, non-sublicensable, real-time license to access reporting via a secure, confidential login to the LotLinx Dealer Portal. You will not share Your login information with a third party without the prior written consent of LotLinx. You are solely responsible for any and all activities that occur under Your LotLinx Dealer Portal account (“Dealer Account”). You will notify LotLinx immediately upon learning of any unauthorized use of Dealer Account or any other breach of security. LotLinx’s support staff may, from time to time, log in to the Dealer Account under the Your established password in order to maintain or improve service, including but not limited to providing You assistance with technical or billing issues.
4.2 LotLinx Application Services. You are solely responsible for any and all activities that occur under Your LotLinx Application Account. You will notify LotLinx immediately upon learning of any unauthorized use of Your LotLinx Application Account or any other breach of security. LotLinx’s support staff may, from time to time, log in to the LotLinx Application Account under Your established password in order to maintain or improve service, including but not limited to providing You assistance with technical or billing issues.
5. LotLinx Tracking Code & Google Analytics.
5.1 LotLinx Services. As a requirement to receive LotLinx Services, You will grant LotLinx access to Your Google Analytics account to setup Your ability not only to identify the quantity of sessions sent to Your VDP, but also to assess the quality of traffic through the LotLinx “Edit and Collaborate” service for Google Analytics and other optimizing features.
5.2 LotLinx Application Services. You may grant LotLinx access to Your Google Analytics account to setup Your ability not only to identify the quantity of sessions sent to Your VDP, but also to assess the quality of traffic through the LotLinx “Edit and Collaborate” service for Google Analytics and other optimizing features.
5.3 Cooperation to Setup LotLinx Services. You will cooperate with LotLinx to setup the LotLinx Services. Cooperation with setting up the LotLinx Services will include, but not be limited to instructing each of Your website administrators to facilitate the integration of the LotLinx Tracking Code. LotLinx will deploy Google Tag Manager events and the LotLinx Events Tracking Tool which will inform Google Analytics when visitors are looking at the pictures on Your VDP or track other Campaigns. LotLinx will initiate retargeting Campaigns on Your behalf for Inventory engaged in the LotLinx Services. USE OF GOOGLE ANALYTICS INCORPORATED IN THE LOTLINX SERVICES WILL BE GOVERNED BY THE THEN CURRENT STANDARD TERMS AND CONDITIONS OF THE SOFTWARE LICENSOR AVAILABLE AT WWW.GOOGLE.COM/ANALYTICS.
6. Dealer Content.
6.1 License. You hereby grant LotLinx a perpetual, irrevocable, royalty-free, and non-exclusive license to use, copy, encode, enhance, store, reproduce, edit, adapt, modify, translate, transmit, publish, syndicate, sublicense, and publicly display the Dealer Content so LotLinx can provide You with the LotLinx Services and/or Application Services. LotLinx reserves the right to share Dealer Content with Publishers. Publishers may, among other things, enhance Dealer Content to provide specific information related to the Publisher’s target audience. You will not obtain any ownership right or license to any LotLinx or Publisher content or enhancements made to Dealer Content. You will retain any copyright and any other rights You already hold in the Dealer Content that You submit, post or display on or through the LotLinx Services and/or Application Services, or which You provide to LotLinx and/or its Service Providers.
6.2 Rights to Dealer Content. You agree not to provide LotLinx with Dealer Content that You do not have the right to provide or that LotLinx does not have the right to publish or syndicate. You agree not to provide any Dealer Content that infringes or misappropriates any third party rights, advertises illegal goods or services, or is defamatory, inaccurate or otherwise tortious or criminal. If You discover that Dealer Content supplied to LotLinx violates the foregoing, You must (a) immediately upload new, correct Dealer Content, and (b) notify LotLinx at email@example.com. If LotLinx discovers that Dealer Content violates the foregoing, LotLinx will (a) immediately remove the Dealer Content that violates this Section 6.2, and (b) will notify You so You can provide LotLinx with new Dealer Content. YOU AGREE TO DEFEND AND INDEMNIFY LOTLINX FOR ANY CLAIM RELATING TO DEALER CONTENT, EXCEPT TO THE EXTENT THE CLAIM IS BASED ON MODIFICATION OR ALTERATION MADE TO SUCH DEALER CONTENT BY LOTLINX.
6.3 Dealer Content Representations and Warranties. YOU HEREBY REPRESENT AND WARRANT THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION OR DISPLAYED ON YOUR WEBSITE WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADEMARK, PATENT, STATUTORY, REGULATORY, STATE, FEDERAL, OR COMMON LAW, POLICY, PRIVACY, OR PROPRIETARY RIGHT OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS. YOU HEREBY AGREE THAT YOUR PERFORMANCE OF YOUR OBLIGATIONS UNDER THIS AGREEMENT, AND THE OPERATION OF YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO THE USE OF SALES LEADS AND USE AND MAINTENANCE OF CONSUMER PERSONAL DATA, WILL COMPLY WITH ALL APPLICABLE PRIVACY POLICIES, THIRD PARTY AGREEMENTS, AND ALL STATE AND FEDERAL LAWS AND REGULATIONS.
6.4 Dealer Content Access Upon Termination. In the event You or LotLinx terminates or otherwise cancels this Agreement, LotLinx retains the rights to access Your inventory feed and/or AdWords account until You request that LotLinx disables access to the inventory feed and/or AdWords account, or until You disable LotLinx’s access to the inventory feed and/or AdWords account.
7. Term and Termination.
7.1 Initial Commitment Term. Dealer may not cancel or terminate this Agreement prior to the expiration of the Initial Commitment Term.
7.2 Dealer Cancellation for LotLinx Services. To cancel the LotLinx Services, You must contact Your LotLinx Representative assigned to Your account. Cancellation will be effective on the last day of the first full month following receipt of the email notice cancelling the LotLinx Services. For example, if LotLinx receives Your email notice on October 15th, the LotLinx Services provided to You will end on November 30th. If You provided a Media Deposit when You enrolled in the LotLinx Services, LotLinx will use the Media Deposit towards delivering You additional LotLinx Services until the balance of the Media Deposit reaches $0. LotLinx will not refund any part of a Media Deposit. If the amount of your Media Deposit is not sufficient to maintain your final Core Investment, you agree to pay and LotLinx will bill you this additional amount on your final invoice.
7.3 Dealer Cancellation for LotLinx Application Services. You may cancel the Application Services through the settings on the Application. You will no longer have access to the Application Services at the end of your then-current billing cycle.
7.4 LotLinx Termination. LotLinx may terminate this Agreement, and cease providing the LotLinx Services and/or Application Services, immediately in the event (a) You fail to pay any applicable fees when due, (b) You breach the terms and conditions of this Agreement, or (c) the LotLinx Services and/or Application Services, or any part thereof, are deemed by LotLinx or alleged or determined by an appropriate governmental authority to violate any local, state, or federal law or regulation. LotLinx may, at any time and for any other reason, terminate this Agreement upon thirty (30) days prior written notice to You. For purposes of this section, email notice of LotLinx’s intent to terminate the LotLinx Services and/or Application Services provided to You will be acceptable as a form of written notice.
9. Changes to the LotLinx Services and/or Application Services. LotLinx reserves the right to modify or change the LotLinx Services and/or Application Services provided at any time. LotLinx will make reasonable commercial efforts to have such changes become effective thirty (30) days from the date LotLinx gives You notice of such changes. However, changes to the LotLinx Services and/or Application Services that relate to a new feature or changes for legal reasons will become effective immediately. Some modifications or changes may result in a fee increase or decrease for such LotLinx Services and/or Application Services. Your continued use of the LotLinx Services and/or Application Services after the effective date of such changes will constitute Your acceptance of the change in the LotLinx Services and/or Application Services and Your agreement to pay the fees associated with such change.
10. Proper Usage of the Application Services or Application. You may not use the Application Services or the Application in a manner that: is not a good faith use of the Application Services and/or the Application; infringes on a third party’s intellectual property rights; is illegal, unlawful, or malicious; deemed improper by LotLinx in LotLinx’s sole discretion; is defamatory, threatening, abusive, intimidating, or otherwise violates the rights of other, including without limitation other’s privacy rights or rights of publicity; accesses or uses (or attempts to access or use) another Dealer Customer’s LotLinx Application Account without permission, or solicit another Dealer Customer’s login information; transmits any software or materials that contain any viruses, worms, Trojan horses, defects , or other items of a destructive nature; frame or mirror any portion of the LotLinx website, Application Services, LotLinx Services, or Application; or harvests or collects information about or from other Dealer Customers; probes, scans, or tests the vulnerability of the LotLinx website, Application Services, LotLinx Services, or Application.
11. Restriction on the use of LotLinx Services and/or Application Services. Use of the LotLinx Services and/or Application Services is subject to the applicable policies of the Publishers that display Dealer Content via ads, videos, or other advertising media in connection with the LotLinx Services and/or Application Services, including without limitation any Publisher’s or applicable third-party policies. You are solely responsible for the accuracy of Dealer Content and You agree to comply with all applicable laws, regulations, advertising policies, and communication policies. LotLinx or the Service Providers may modify Dealer Content to comply with any laws, regulations, or Policies in its sole discretion. Where LotLinx or Service Provider has modified such Dealer Content, LotLinx will be responsible for such modification. You may use the LotLinx Services and/or Application Services only for purposes that are permitted under this Agreement, and in accordance with applicable laws and regulations. You agree not to access, or attempt to access, any of the secure web services by any means other than through the interfaces that are made accessible by LotLinx or the Services Provider. Without limiting the foregoing, You agree 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 LotLinx Services and/or Application Services.
12. Access to Your Website. In the event the performance of the LotLinx Services and/or Application Services requires LotLinx or the Service Provider to access Your inventory and analytics to perform the LotLinx Services and/or Application Services, You will specifically request and authorize such access for LotLinx and will provide, and have all rights and authorizations required to provide access to such information. You understand and agree that LotLinx and/or a Service Provider may engage a data polling service to poll and transmit data from the Your inventory or other systems in order to provide the services requested. You hereby grant to LotLinx and each Service Provider a royalty-free, non-exclusive, non- transferable, perpetual license to use sales and inventory data (to the extent available) obtained from Your computer systems for the purposes of (a) consumer, vehicle, and industry research and reference, (b) evaluation of performance, (c) combining with other data to create proprietary reports and guides, and (d) generating market analysis data and related products; provided, the sales and inventory data shall not be used to sell to Your name any third party or provide the individual name of any consumer or customer.
13. Promotions and Incentives. LotLinx may offer promotions or incentives from time-to-time. This Agreement applies to all promotions and incentives now and in the future and are a condition of and binding on Your eligibility and participation in the same. Additional terms, qualifications, stipulations, and conditions may be stated on individual promotion and incentive notices that You may receive directly from LotLinx. All promotions and incentives are subject to certain eligibility requirements, such eligibility requirements will be described in the specific promotion or incentive notice sent to You. All promotions and/or incentives are subject to any local or state laws or limitations and are not valid in conjunction with any other promotions, incentives, or offers. Should a promotion or incentive offer You lower fees for a certain period of time, all fees will return to their full retail price upon expiration of the promotion or incentive.
14. Nonexclusive License. Provided You are not in default of any obligations under this Agreement, and provided You have paid all applicable fees, LotLinx grants You a personal, revocable worldwide, royalty-free, non-assignable, and non-exclusive license, without the right to sublicense, to use the LotLinx Services and/or Application Services, LotLinx Service Content, and any trademark included herein, provided to You by LotLinx as part of the LotLinx Services and/or Application Services provided to You. This non-exclusive license is for the sole purpose of enabling You to use and enjoy the LotLinx Services and/or Application Services in the manner permitted by this Agreement. This License will terminate upon the termination of this Agreement, as further described in Section 7. You will not, and You will not allow any third party to, (i) copy, modify, adapt, translate or otherwise create derivative works of the LotLinx Services and/or Application Services or any documentation provided to You by LotLinx; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the LotLinx Services and/or Application Services, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the LotLinx Services and/or Application Services or the documentation provided to You by LotLinx; (iv) remove any proprietary notices or labels on the LotLinx Services and/or Application Services or placed by LotLinx; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the LotLinx Services and/or Application Services; or (vi) use data labeled as belonging to a third party in the LotLinx Services and/or Application Services for purposes other than generating, viewing, and downloading reports made accessible by LotLinx. You will comply with all applicable laws and regulations in Your use of and access to the LotLinx Services and/or Application Services.
15. Confidentiality. Neither Party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
16. Indemnification. To the extent permitted by applicable law, You will indemnify, hold harmless and defend LotLinx, at Your expense, from any and all third party claims, actions, proceedings, and suits brought against LotLinx or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by LotLinx or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the LotLinx Services and/or Application Services, (iii) Your violation of applicable laws, rules or regulations in connection with the LotLinx Services and/or Application Services, (iv) any representations and warranties made by You concerning any aspect of the LotLinx Services and/or Application Services to any third party; (v) any claims made by or on behalf of any third party pertaining directly or indirectly to Your use of the LotLinx Services and/or Application Services; (vi) violations of Your obligations of privacy to any third party; and (vii) any claims with respect to acts or omissions of any third party in connection with the LotLinx Services and/or Application Services. You further agree to indemnify, hold harmless, and defend LotLinx at Your expense should any third-party claim that the license granted by You to LotLinx violates any agreement entered into by You and such third party. LotLinx will provide You with written notice of any claim, suit or action from which You must indemnify LotLinx. You will cooperate as fully as reasonably required in the defense of any claim. LotLinx reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You. Provided that You are not in default of any obligation under this Agreement, and You have paid all applicable Fees, LotLinx will indemnify, hold harmless and defend You and Your wholly owned subsidiaries, at LotLinx’s expense from any and all third-party claims, actions, proceedings, and suits brought against You or any of its officers, directors, employees, agents, or affiliates arising out of LotLinx’s gross negligence in the performance of the LotLinx Services and/or Application Services.
17. No Product or Service Warranties. IF YOU RELY ON THE LOTLINX WEBSITE OR ANY INFORMATION, PRODUCT OR SERVICE AVAILABLE THROUGH LOTLINX, YOU DO SO AT YOUR RISK. YOU UNDERSTAND THAT THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, INACCURACIES, AND/OR OTHER PROBLEMS WITH THE INFORMATION, PRODUCTS, AND SERVICES PUBLISHED ON OR PROMOTED OVER LOTLINX’S WEBSITE AND/OR THROUGH AFFILIATED PRODUCTS OR SERVICES. LOTLINX’S WEBSITE AND ANY AFFILIATED PRODUCTS AND SERVICES ARE PROVIDED TO YOU “AS IS.” LOTLINX AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH LOTLINX’S WEBSITE OR THE LOTLINX PRODUCT OR LOTLINX SERVICES OR APPLICATION SERVICES (OR ANY INFORMATION, GOODS OR SERVICES THAT ARE REFERRED TO, ADVERTISED OR PROMOTED ON, OR SOLD THROUGH LOTLINX), NOR DOES LOTLINX OR ITS AFFILIATES, AGENTS AND LICENSORS GUARANTEE THAT THE LOTLINX WEBSITE AND/OR ANY AFFILIATED PRODUCT OR SERVICE WILL BE ERROR FREE OR CONTINUOUSLY AVAILABLE, OR THAT THE LOTLINX WEBSITE OR LOTLINX SERVICES OR APPLICATION SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE LOTLINX PRODUCTS, LOTLINX SERVICES, APPLICATION SERVICES AND THE CONTENT IS AT YOUR SOLE RISK AND IS PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, LOTLINX, THE SERVICE PROVIDER(S) AND THEIR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE LOTLINX SERVICES AND/OR APPLICATION SERVICES OR THE CONTENT WILL MEET YOUR SUBJECTIVE REQUIREMENTS, OR (B) YOUR USE OF THE LOTLINX SERVICES AND/OR APPLICATION SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR (C) YOU WILL BE PROVIDED WITH A MINIMUM NUMBER OF SALES LEADS, SHOPPERS, OR ACHIEVE A SPECIFIC NUMBER OF CONVERSIONS OF SALES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LOTLINX SERVICES AND/OR APPLICATION SERVICES, INCLUDING ANY CONTENT, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LOTLINX OR ANY SERVICE PROVIDER OR THROUGH OR FROM THE USE OF THE LOTLINX SERVICES AND/OR APPLICATION SERVICES SHALL CREATE ANY WARRANTY.
18. LIMITATION OF LIABILITY. EXCEPT FOR EACH LOTLINX INDEMNIFICATION OBLIGATION, EACH OF LOTLINX’S LIABILITY TO YOU OR YOUR AFFILIATES, FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE WILL NOT EXCEED THE AMOUNT PAID BY YOU TO LOTLINX DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES. NOTWITHSTANDING THE FOREGOING, LOTLINX’S LIABILITY TO YOU FOR A BREACH OF YOUR DATA, CORRUPTION OF YOUR DATA, FAILURE TO STORE YOUR DATA, INTERRUPTION OF YOUR DATA, OR OTHER FORM OF DATA UNAVAILABILITY/CORRUPTION, WILL NOT EXCEED THE AMOUNT PAID BY YOU TO LOTLINX DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY AROSE. IN NO EVENT WILL LOTLINX BE LIABLE TO YOU FOR ANY NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, MISREPRESENTATION, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, DIRECT LOST PROFITS, INDIRECT LOST PROFITS, OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OR CONTRACT, TORT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT LOTLINX’S LIMITATIONS OF LIABILITY DETAILED ABOVE APPLIES TO LOTLINX, THE SERVICE PROVIDERS, LOTLINX’S EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AFFILIATES, AND LICENSORS. YOU FURTHER AGREE THAT THE MAXIMUM LIABILITY FOR LOTLINX, THE SERVICE PROVIDERS, LOTLINX’S EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AFFILIATES, AND LICENSORS UNDER THIS AGREEMENT BOTH INDIVIDUALLY AND IN THE AGGREGATE FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE LAST EVENT GIVING RISE TO LIABILITY.
19. Proprietary Rights Notice. The LotLinx Service Content is owned by or licensed by LotLinx, and protected by law, including copyrights, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations. The LotLinx Service Content is Copyright 2002-2019, LotLinx, Inc., all rights reserved. LotLinx also owns copyright rights in collective works and/or compilations and in any and all databases accessible on or through the LotLinx Services and/or Application Services. LotLinx and all other marks displayed on the LotLinx Services and/or Application Services (collectively the “Trademarks”) are registered and/or common law trademarks of LotLinx and/or various third parties. Except as expressly stated herein, nothing contained in the LotLinx Services and/or Application Services may be construed as granting, by implication, estoppel, or otherwise, any grant, license or right to use any licensed copyright or trademark without the prior written permission of LotLinx or such other party that may own the trademarks or any licensed copyrights. The LotLinx Services and/or Application Services, which includes any copyrights and all intellectual property rights therein are, and will remain, the property of LotLinx. All rights in and to the LotLinx Services and/or Application Services not expressly granted to You in this Agreement are reserved and retained by LotLinx and its licensors without restriction, including, LotLinx’s right to sole ownership of the LotLinx Services and/or Application Services and any documentation provided to You by LotLinx. Without limiting the generality of the foregoing, You agrees not to (and not to allow any third party to): (a) sublicense, distribute, or use the LotLinx Services and/or Application Services outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the LotLinx Services and/or Application Services or otherwise attempt to discover any source code or trade secrets related to the LotLinx Services and/or Application Services; (c) rent, lease, sell, assign or otherwise transfer rights in or to the LotLinx Services and/or Application Services; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the LotLinx Services and/or Application Services; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the LotLinx Services and/or Application Services for any purpose without the express written consent of LotLinx; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with LotLinx other than in the name of LotLinx; (g) transfer to another Dealership or any other entity any sales leads, or any data included in any sales leads, delivered to You in connection with the LotLinx Services and/or Application Services; (h) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the LotLinx Services and/or Application Services; or (i) challenge or contest, whether directly or indirectly, the validity of LotLinx’s ownership of such copyrights, trademarks, or any other intellectual property, or assist any other third party in doing so.
20. Force Majeure. Each Party to this Agreement shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation contained within this Agreement, in whole or in part, as a result of delays caused by the other Party, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or non-availability 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.
21. Independent Contractor Status. LotLinx and the Service Providers are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created between You and LotLinx or the Service Providers under this Agreement.
22. Notices. Any notice to be provided under this Agreement shall be in writing and shall be delivered via one of the following methods: (1) to You at the email address provided by You under the MSA, (2) to You at the email address provided by You when You created Your LotLinx Application Account, or (3) to You via a notification in the Application. Dealers enrolled in the LotLinx Services may notify LotLinx in writing that You require notices to be delivered to an alternative address. Notices will be considered delivered when received. Notices sent to LotLinx will be sent to the LotLinx Headquarters, address listed on www.lotlinx.com, with copies to Finance, Chief Operating Officer, and Legal.
23. Waiver. No delay in exercising any right, power, or remedy under this Agreement shall operate as a waiver of such right, power, or remedy, nor will any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of that right, power, or remedy.
24. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions of this Agreement. Headings used in this Agreement are for reference and convenience only and are not part of this Agreement.
25. Assignment. You may not assign this Agreement without the prior written approval of LotLinx, except that no approval shall be required to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with You. LotLinx may assign this Agreement, so long as LotLinx provides notice to You as soon as practicable. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors and assigns.
26. Governing Law, Venue for Resolving Disputes, Binding Arbitration. The laws and jurisdiction of the State of Illinois without regard to its conflict or choice of law provisions governs this Agreement and the provision of the LotLinx Services and/or Application Services by LotLinx and its Service Providers.
Any dispute or controversy arising under or in connection with Your use of the LotLinx Services and/or Application Services, Your relationship with LotLinx, Your access to the LotLinx website or any of the sites affiliated with LotLinx, this Agreement or otherwise in connection with LotLinx shall be settled exclusively by arbitration as set forth here. Any dispute or controversy shall be submitted to a single arbitrator to be chosen by mutual agreement of the parties from the panel of arbitrators at the JAMS Chicago, Illinois office within five (5) days after the request for arbitration notice is received by a Party. If the Parties, within such time, cannot agree on an arbitrator, the arbitrator shall be chosen pursuant to the JAMS Comprehensive Arbitration Rules & Procedures from its panel of arbitrators at the JAMS, Chicago, Illinois office. A copy of the Rules & Procedures can be found here http://www.jamsadr.com/rules-comprehensive-arbitration. The arbitration hearing shall be held in Cook County, Illinois, United States of America, or at such other place that the parties and the arbitrator mutually agree upon, such agreement shall take place no later than thirty (30) days after the demand for arbitration is received in writing. You acknowledge and agree that any arbitration hereunder will be subject to JAMS Expedited Procedures Rule 16.1 and 16.2 and any other JAMS Rules and Procedures not in conflict with the Expedited Procedure Rules shall apply.
The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration clause and without abridgment of the powers of the arbitrator. YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THIS SECTION, WHICH DISCUSSES ARBITRATION. YOU AGREE TO SUBMIT ANY PRESENT AND FUTURE CLAIMS AGAINST LOTLINX TO BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF YOUR RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES AGAINST LOTLINX.
27. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties in regard to the subject matter contained within this Agreement. This Agreement supersedes all prior agreements, consents and understandings whether oral or written in regard to the subject matter of this Agreement.
Last Updated February 1, 2019 v2