TERMS OF SERVICE FOR “VVO TRIAL PROMOTION”
The Parties hereby agree as follows:
1. Defined Terms. For purposes of this Agreement, 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. “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.
1.2. “Dealer” means the automotive dealership entity participating in the Promotion.
1.3. “Dealer Content” means the data and content processed and used by the LotLinx Application, including the inventory and inventory related data, images, Your logos, marks, trademarks and Your other intellectual property, that You submit to LotLinx.
1.4. “Dealer Rooftop” means an automotive dealership at one physical address owned or operated by Dealer.
1.5. “Dealer Website” means a web domain associated with one or more Dealer Rooftop.
1.6. “LotLinx Application” means the web-based application accessed by Dealer using the LotLinx Promotion Account to receive the LotLinx Promotion Services and to view and interact with data, information, text, photos, images, graphics, code, marks, logos, audio, video, footage, animations, analyses, studies, downloads, and the like.
1.7. “LotLinx Promotion Account” means the account created by You, through the LotLinx website, when enrolling in the Promotion.
1.8. “LotLinx Promotion Services” means the services provided to You by LotLinx under this Agreement including the License granted in this Agreement.
1.9. “Publishers” means affiliates and/or online publishers that LotLinx has a relationship with.
1.10. “Service Providers” means a third party that is authorized to act on behalf of LotLinx.
2. VVO Promotion Details.
2.1. License. Subject to Dealer performing all of the obligations of this Agreement, LotLinx grants to Dealer a personal, time limited, nonexclusive, revocable license to use the LotLinx Application (the “License”).
2.2. Free Trial. This Agreement governs a free trial promotion of the LotLinx Promotion Services by You at a single Rooftop and, accordingly, there are no fees due by You subject to all of the terms and obligations contained in this Agreement.
2.3. Taxes. Dealer is responsible for paying any applicable sales, use, excise or similar taxes (collectively, “Taxes”) related to Dealer’s use of the LotLinx Promotion Services under this Agreement, except for Taxes based on the net income of LotLinx or the Services Provider.
3. Dealer Requirements to Participate in VVO Trial Promotion.
3.1. Google Analytics and Inventory Feed. As a requirement to access the LotLinx Application and to receive the LotLinx Promotion Services, You agree to grant LotLinx access to Your Google Analytics account and inventory feed. USE OF GOOGLE ANALYTICS INCORPORATED IN THE LOTLINX PROMOTION SERVICES WILL BE GOVERNED BY THE THEN CURRENT STANDARD TERMS AND CONDITIONS OF THE SOFTWARE LICENSOR AVAILABLE AT WWW.GOOGLE.COM/ANALYTICS.
3.2. Cooperation to Setup LotLinx Promotion Services.You agree to cooperate with LotLinx to setup the LotLinx Promotion Services and Dealer’s access to the LotLinx Application, including but not limited to, instructing each of Your website administrators to facilitate the integration of any required tracking code or other assets necessary to utilize the LotLinx Application.
4. Dealer Content.
4.1. License to Dealer Content. 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 Promotion 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 Promotion Services, or which You provide to LotLinx and/or its Service Providers.
4.2. 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 firstname.lastname@example.org. If LotLinx discovers that Dealer Content violates the foregoing, LotLinx will (a) immediately remove the Dealer Content that violates this Section of the Agreement, 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.
4.3. 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.
4.4. Dealer Content Access Upon Termination. In the event of termination of 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.
5. Term and Termination.
The term of this Agreement, shall begin on the Effective Date and shall continue on a month-to-month basis until terminated by either Party for any reason, including for convenience and without notice to the other Party.
6. Modifications to the Agreement.
LotLinx may modify this Agreement or any additional terms that apply to the Promotion upon thirty (30) days prior notice to the effective date of such modifications. LotLinx may give notice of a change to this Agreement to You via email to the email address provided by You on the enrollment form completed by Dealer or another address agreed upon by You and LotLinx. Dealer's continued use of the LotLinx Application LotLinx Promotion Services after the effective date of the modifications will constitute Your acceptance of the modifications.
7. Reservation of Rights.
LotLinx reserves the right to modify or change the LotLinx Application or LotLinx Promotion Services at any time without notice to You.
8. Proper Usage of the LotLinx Application and LotLinx Promotion Services.
LotLinx may, at its sole option, terminate this Agreement if, in the opinion of LotLinx, You use the LotLinx Application or LotLinx Promotion Services in a manner that: is not a good faith use; 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 any third party, including without limitation a third party’s privacy rights or rights of publicity; accesses or uses (or attempts to access or use) another account of any customer or another user of this Promotion or the LotLinx Application; 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 or the LotLinx ; harvests or collects information about or from other customer of LotLinx; or probes, scans, or tests the vulnerability of the LotLinx website or LotLinx Promotion Services.
9. Restriction on the use of LotLinx Promotion Services.
Use of the LotLinx Application and LotLinx Promotion 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 Promotion 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 Promotion 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 Application or the LotLinx Promotion Services.
10. Access to Your Website.
In the event the performance of the LotLinx Promotion Services requires LotLinx or the Service Provider to access Your inventory and analytics to perform the LotLinx Promotion 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 Your inventory or other systems in order to provide the services requested. You hereby grant to LotLinx and each Service Provider a royalty free, nonexclusive, nontransferable, perpetual license to use such sales and inventory data 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.
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.
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 Application or LotLinx Promotion Services, (iii) Your violation of applicable laws, rules or regulations in connection with the LotLinx Application or LotLinx Promotion Services, (iv) any representations and warranties made by You concerning any aspect of the LotLinx Application or LotLinx Promotion 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 Application or LotLinx Promotion 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 Application or LotLinx Promotion Services. 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, 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 Promotion Services.
13. No Product or Service Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE LOTLINX APPLICATION, THE LOTLINX PROMOTION SERVICES, AND ANY CONTENT ASSOCIATED THEREWITH 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 APPLICATION OR LOTLINX PROMOTION SERVICES OR THE CONTENT WILL MEET YOUR SUBJECTIVE REQUIREMENTS, OR (B) YOUR USE OF THE LOTLINX APPLICATION OR LOTLINX PROMOTION 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 APPLICATION OR LOTLINX PROMOTION 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 APPLICATION OR LOTLINX PROMOTION SERVICES SHALL CREATE ANY WARRANTY.
14. Limitation of Liability.
LOTLINX SHALL NOT BE RESPONSIBLE FOR 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 OF 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.
15. Proprietary Rights Notice.
The LotLinx Application and all associated 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 Application is Copyright 2002-2020, 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 Application or LotLinx Promotion Services and/or Application Services. LotLinx and all other marks displayed on the LotLinx Promotion 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 Promotion 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 Application, which includes any copyrights and all intellectual property rights therein is, and will remain, the property of LotLinx. All rights in and to the LotLinx Application 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 Application 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 Application or LotLinx Promotion 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 Application or otherwise attempt to discover any source code or trade secrets related to the LotLinx Application; (c) rent, lease, sell, assign or otherwise transfer rights in or to the LotLinx Application or LotLinx Promotion Services; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the LotLinx Application or LotLinx Promotion 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 Application or LotLinx Promotion 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; (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 Promotion; (h) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Application; 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.
16. 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.
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.
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.
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.
20. Governing Law, Venue for Resolving Disputes, Binding Arbitration.
The laws and jurisdiction of the State of New Hampshire without regard to its conflict or choice of law provisions governs this Agreement and the provision of the LotLinx Promotion Services by LotLinx and its Service Providers. Any dispute or controversy arising under or in connection with Your use of the LotLinx Promotion 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 Boston, Massachusetts 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 Boston, Massachusetts 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 New Hampshire, 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.
21. Entire Agreement.
This Agreement constitutes the entire agreement and understanding of the Parties in regard to your participation in the VVO Trial Promotion. This Agreement supersedes all prior agreements, consents and understandings whether oral or written in regard to the subject matter of this Agreement.
Rev. 2020.04.13 – VVO Promotion