Terms and Conditions
Sale price The customer (“Customer”) signing the OpsVision Order Form (each, an “Order”) agrees that Customer’s use of any products (“Products”) or services (the “Services”) offered by Automotive Innovations, Inc. (“AI”) will be subject to these standard terms and conditions (the “Terms” and, collectively with the Order, this “Agreement”).
These Terms governs Customer’s use of all Products and Services ordered from AI by Customer from time to time. These Products and Services will be identified on each Order. Subject to Customer’s payment of any applicable Fees(as defined below), AI will provide to Customer the Products and Services identified in the Order. As further specified in the applicable Order, the Products and Services may consist of professional services, access to online products and services not generally available to the public without a subscription (collectively, the “OpsVision Site”), and hardware and other equipment.
2. Access to OpsVision Online Services
2.1. Grant of Rights.
Subject to Customer’s compliance with the terms of this Agreement, including, without limitation, the restrictions set forth in Section 2.2 below, and provided Customer orders the OpsVision Suite, AI grants to Customer and its Authorized Users a non-exclusive, non-transferable, limited license, during the Term of this Agreement, to access and use the Service son and through the OpsVision Site, solely for the purpose of enhancing operations visibility, managing departmental data, distributing reports, and displaying data, all in connection with the motor vehicle dealership identified as a “Rooftop” in the Order (the “Business Purpose”). Customer shall be responsible for compliance with, and any breach of, this Agreement by Customer’s Authorized Users. For purposes of this Agreement, “Authorized Users” means (a) Customer’s employees, officers, directors and/or contractors who access any Services on behalf of Customer, and (b) clients and potential clients of Customer wishing to purchase, lease or service a motor vehicle (“Dealership Clients”) as to those portions of the OpsVision Site that are designed to be accessed by such Dealership Clients.
2.2. Restrictions on Use.
Customer acknowledges and agrees that the Services are licensed for use only in connection with motor vehicle dealer locations/rooftops (each a “Rooftop”)that are identified in an Order, and Customer shall not use the Services for any unauthorized location.
Notwithstanding anything to the contrary in this Agreement, Customer may not (i) provide, disclose, make available or allow access to, or permit use of any Service by any third party (except for the Services that are designed specifically for Dealership Clients); (ii) modify, adapt, translate, or create derivative works based upon, the underlying software code of any Service; or (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Service except to the extent Customer may be expressly permitted to do so under applicable law.
2. Termination of Rights.
Customer acknowledges and agrees that AI may discontinue, terminate, or otherwise limit Customer’s access to, or use of, the OpsVision Site and any of the rights granted in Section 2.1 above if, in its sole discretion, AI determines that Customer has violated or attempted to violate any portion of this Agreement.
3. Data Rights
3.1. Inventory Data.
Customer acknowledges that certain Services will require AI, its Affiliates (as defined in Section 10.1, below) and/or its service providers to access, store and manage Customer’s inventory data. If Customer requests any such Service, Customer agrees that AI, its Affiliates and/or such service providers may access Customer’s dealer management system for acquiring inventory data for providing such Services. Customer alone is responsible for ensuring the accuracy and integrity of the inventory data. Customer must notify AI immediately of any problems with the Services or any errors in the inventory data.
3.2. Performance/Transaction Data.
Customer may use the Services to manage transactions, and other interactions in connection with the Business Purpose (collectively, this data is referred to as the “Performance/Transaction Data”). Customer hereby grants to AI and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Performance/Transaction Data in any manner or medium, now known or here after developed, in connection with the Business Purpose, and (ii) to prepare and use statistical analyses based on such Performance/Transaction Data (“Statistical Data”), which AI and its Affiliates may combine with other similar data from other customers and disseminate and otherwise use in aggregate form.
3.3. Proprietary Rights in Customer Data.
Subject to the licenses granted pursuant to Sections 3.1 and 3.2, above, as between the Customer and AI, Customer will own and retain all right, title and interest in and to all inventory data and Performance/Transaction Data (collectively, “Customer Data”) provided or made available through the OpsVision Site, or otherwise collected or received by AI, in connection with Customer’s use of the Services.
4. Term; Termination.
The term of this Agreement will commence as of the date on which Customer assents to this Agreement by both signing the Order and paying the full amount indicated therein as being due on signing and will remain in effect until terminated as set forth below (“Term”).
4.2. Termination for Cause.
AI may terminate this Agreement and/or cancel any Service(s) at any time in the event of a material breach by Customer that remains uncured for a period of five (5) days following Customer’s receipt of written notice of such breach from AI. Customer may terminate this Agreement at any time in the event of a material breach of the terms of this Agreement by AI that remains uncured for a period of thirty (30) days following AI’s receipt of written notice of such breach from Customer.
4.3. Termination for Convenience.
Without limiting Section 4.2, above, either party may terminate this Agreement and/or cancel any Service(s) at any time, with or without cause, upon thirty (30) days’ prior written notice to the other party. Rooftops may be canceled in accordance with Section 5 below. For avoidance of doubt, only the cancellation of all Services for all Rooftops will terminate this Agreement.
4.4. Effects of Termination.
Upon expiration or termination of this Agreement or any Order Schedule, (i) Customer’s right to use the Services will immediately terminate, and (ii) all unpaid Fees outstanding from Customer will accelerate and become immediately due and payable. Customer will reimburse AI for any costs or expenses it incurs to collect any amount not paid when due, including without limitation, reasonable attorneys’ fees. Upon the expiration or termination of this Agreement for any reason each party will be released from all obligations to the other arising after the date of expiration or termination, but not from the rights and obligations that ought reasonably be constructed to survive such termination or expiration and liabilities that arise out of any breach.
5. Fees; Payment
Customer will pay AI the fees specified in each Order plus all applicable federal, state and local taxes (collectively, the “Fees”). Payments are due monthly in advance. Monthly Fees are to be paid for by credit card or ACH only and Customer is responsible for providing complete, accurate, and up-to-date billing and contact information to AI and notifying AI of any changes to such information. All amounts paid by Customer pursuant to this Agreement are non-refundable. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by AI regarding future functionality or features.
5.2. Payment Authorization.
At any time payment is not timely made, Customer hereby authorizes AI to charge the Fees to the credit card or ACH it has on file, unless Customer cancels the applicable Service in accordance with Section 4.3, above. If AI is unable to successfully complete a credit card or ACH payment, then any amount not paid when due will be subject to finance charges equal to 1.5% percent of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less.
5.3. Document and Cellular Charges.
In addition to regular monthly service Fees, Customer may be subject to charges in connection with usage of cellular data plans and e-contracting in connection with Customer’s use of the Courtesy Car Plus and SmartChoice. Overage charges will be applied on a month-to-month basis.
6. Delivery & Acceptance
All Products shall be shipped by AI to the shipping address identified in Section 5, DAP as per Incoterms 2020. Customer will be notified when a Product is shipped. Title to Products passes to Customer upon Product’s delivery.
Customer shall inspect Products promptly upon their receipt. Nonconformities visible upon receipt have to be noted on the delivery note and/or Waybill presented by the delivering carrier. Unless Customer notifies AI in writing with in two (2) business days after the receipt of Products that the Products are nonconforming, describing the nonconformity in commercially reasonable detail, Customer shall be deemed to have accepted the Products. No Products delivered and accepted are subject to returns except upon written approval of AI at its sole discretion. With regard to Products that are rejected, Customer at its option and at the expense and risk of AI, may return such Products to AI or store them pending instructions from AI as to their disposal. Payment for Products shall not constitute acceptance.
7. Representations and Warranties
7.1. Customer Warranties.
Customer represents and warrants that (i) it is a legal entity duly organized, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it has all rights necessary to provide the Customer Data and any other materials (including any trademarks, service marks, logos, photographs, images, graphics, audio, video, or other creative materials (collectively, “Customer Materials”)) provided or made available by Customer, and that such Customer Data and Customer Materials do not and will not infringe any rights of any third party, including, but not limited to, any contractual rights, copyright, trademark or trade secret rights or any right of privacy or publicity, (iv) Customer’s use of the Products and Services will comply with all applicable laws, rules and regulations, including, without limitation, any privacy laws; (v) its execution of, and performance under, this Agreement shall not violate any agreement to which it is a party or by which it is bound; (vi) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms; (vii) if it knows or should know of any claims it has against AI, its officers, directors, employees or agents, it has disclosed those claims in writing prior to executing the Agreement, or it waives such claims; (viii) it will not use the Products or Services in order to directly or indirectly build either (a) a competitive product or service or (b) a product or service that contains features similar to any portion of the Products or Services; (ix) it will not reverse engineer any Products or Services (to the extent such restriction is permitted by law); (x) it will not access or use the OpsVision Site in any manner that could damage, disable, overburden, or impair any AI accounts, computer systems or networks; (xi) it will not attempt to gain unauthorized access to any parts of the OpsVision Site, AI accounts, computer systems, networks or intellectual property; (xii) it will not interfere or attempt to interfere with the proper working of the OpsVision Site or any AI accounts, computer systems or networks; (xiii) it will not use any robot, spider, scraper or other automated means to access the OpsVision Site or any AI accounts, computer systems or networks without AI’s permission. Customer assumes the risk and agrees to indemnify AI against and hold AI harmless from all liability relating to (i) assessing the suitability for Customer’s intended use of the Products and Services and of any system design or drawing and (ii) determining the compliance of Customer’s use of the Products and Services with applicable laws, regulations, codes and standards. Customer retains and accepts full responsibility for all warranty and other claims relating to, or arising from, Customer’s products that include or incorporate Products, Services or components manufactured or supplied by AI. Customer will indemnify AI and hold AI harmless from any liability, claims, loss, cost or expenses (including reasonable attorneys’ fees) attributable to Customer’s products or representations or warranties concerning same.
7.2. Product Warranties.
AI warrants to Customer that the Products (the “Warranty”) (x) shall be free of defects in materials and workmanship from the date of invoice for thirty (30) months (“Warranty Period”), and (y) shall be free of liens and encumbrances when shipped to Customer. AI’s Warranty will not apply to any Product with respect to which there has been (i) improper installation or testing, (ii) failure to provide a suitable operating environment, external causes, such as accident, abuse, misuse, problems with electrical power (iii) use of the Product for purposes other than that for which it was designed, (iv) failure to monitor or operate the Product in accordance with applicable AI specifications and good industry practice, (v) combination or use of any Product with software drivers, digital pens, touch controllers, and or sensors or components that are not approved by AI in writing, (vi) unauthorized attachment or removal or alteration of any part of the Product, (vii) unusual mechanical, physical or electrical stress, (viii) modifications, services or repairs done by anyone other than AI or an AI authorized service center, or (ix) any other abuse, misuse, neglect or accident. In no event shall AI have any liability or obligation with respect to expenses, liabilities or losses associated with the installation or removal of any Product or the installation or removal of any components for inspection, testing or redesign occasioned by any defect or by repair or replacement of a Product (including to an equivalent or upgraded product). Customer shall notify AI in writing promptly (and in no case later than thirty (30) days after discovery) of the failure of any Product to conform to the warranty set forth above, shall describe in commercially reasonable detail in such notice the symptoms associated with such failure, and shall provide to AI the opportunity to inspect such Products as installed, if possible. The notice must be received by AI during the Warranty Period for such Product. Unless otherwise directed in writing by AI, within thirty (30) days after receipt of such notice, Customer will package the allegedly defective Product in its original shipping carton(s) or a functional equivalent and shall ship it to AI at Customer’s expense and risk. Within a reasonable time after receipt of the allegedly defective Product and verification by AI that the Product fails to meet the Warranty, AI shall correct such failure by, at AI’s option, either (i) modifying or repairing the Product or (ii) replacing the Product with a substantially similar product. Such modification, repair or replacement and the return shipment of the Product with minimum insurance to Customer shall be at AI’s expense. AI may request payment for reimbursement of costs and expenses incurred by it for Products found to be “not defective” or performing at the levels specified in AI’s technical specifications.
THE REMEDIES IN SECTION 7.2 SHALL BE CUSTOMER’S EXCLUSIVE REMEDIES FOR BREACH OFWARRANTY. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, AI (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS) GRANTS NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, (I) REGARDING THE PRODUCTS, SOFTWARE, SERVICES OR THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, THEIR NONINFRINGEMENT, PERFORMANCE, RELATING TO THIRD-PARTY PRODUCTS, SOFTWARE OR SERVICES; (II) RELATING TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE OR AI’S PERFORMANCE OF THE SERVICES; OR (III) REGARDING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES OR THE RESULTS OF ANY RECOMMENDATION BY AI OR OTHERWISE. NO EMPLOYEE OF AI OR ANY OTHER PARTY IS AUTHORIZED TO MAKE ANY WARRANTY FOR THE GOODS OTHER THAN THE WARRANTY SET FORTH HEREIN. AI’S LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. IN NO EVENT SHALL AI BE LIABLE FOR THE COST OF PROCUREMENT OR INSTALLATION OF SUBSTITUTE GOODS BY CUSTOMEROR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS HEREOF, AI SHALL NOT BE OBLIGATED TO PERFORM ANY OF THE WARRANTY OBLIGATIONS SET FORTH HEREIN IN THE EVENT THAT CUSTOMERIS IN DEFAULT OF ANY OF ITS PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND AI MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE.
Temporary interruptions may occur in the provision of Service and any such interruptions shall not result in AI having any liability to Customer or others. Interruptions shall not suspend or eliminate payment obligations or provide Customer with rights to any refunds.
Customer will indemnify, defend and hold harmless AI, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable attorneys’ fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of Customer’s obligations, representations or warranties under this Agreement, (ii) Customer’s use of the Services, or (iii) any claim that any Customer Data or Customer Materials (a) misappropriates any third party’s confidential information, (b) violates any applicable law, rule or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.
9. Limitation of Liability
IN NO EVENT WILL AI, ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AI’S, ITS AFFILIATES’ AND THEIR LICENSORS’ TOTAL LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING THROUGH CUSTOMER FOR ANY CLAIM ARISING OUT OF AI’S PERFORMANCE UNDER THIS AGREEMENT OR ITS PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO AI WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Proprietary Rights
10.1. Rights in the OpsVision Site.
The Services constitute the intellectual property of and are owned by AI, its Affiliates and/or its licensors, and AI, its Affiliates and/or its or their licensors retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Services. The structure, organization and code of the Services are valuable trade secrets and Confidential Information of AI, its Affiliates and/or its or their licensors. Any user name or password provided to or created by Customer for use in connection with the Services are Confidential Information of AI and may not be shared with any third party without the prior written authorization of AI. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights in any Services and all rights not expressly granted are expressly reserved by AI, its Affiliates and/or its or their licensors. AI shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services. Customer may not remove or authorize or permit its Authorized Users to remove or obscure any proprietary rights legends from the Services. For purposes of this Agreement, “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, AI, where “control” means the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.
AI, its Affiliates and/or its or their licensors own and retain all rights in any trademarks, service marks, trade names and logos, and all related products and service names, marks, and slogans used by AI in connection with the Services, including, without limitation, Automotive Innovations™,OpsVision™, Recon Central™, Smart Choice™, DayTracker™, CourtesyCar+TM, AI University™ and SmartDesk™. Any other trademarks, service marks, trade names orlogos contained within any Services areowned by their respective owners.
11.1. Definition of Confidential Information.
For purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement, and all non-public information about AI business or activities that is marked or designated by AI as “confidential” or” proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation all AI business (including pricing), financial, technical and other similar information.
11.2. Use of Confidential Information.
Customer agrees that: (i) it will not disclose to any third party any Confidential Information disclosed to it by AI except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by AI except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of AI in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, Customer may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; and (b) on a “need-to-know” basis to its legal counsel, accountants, employees and agents who are obligated to maintain the confidentiality of such information. Customer agrees that it shall remain liable for the compliance by such persons with the terms of this Agreement. Upon termination or expiration of this Agreement, or at the request of AI, Customer shall (at its option) return the Confidential Information to AI, or destroy it and, upon AI’s request, certify that it has taken such action. The provisions of this Section 11.2 shall survive for a period of thee (3) years after the date of termination or expiration of this Agreement, except with regard to Confidential Information that is also a trade secret under prevailing law the provisions of this Section 11.2 shall survive for as long as such Confidential Information remains a trade secret.
Except as otherwise provided herein, any notice provided pursuant to this Agreement will be in writing, and will be sent by U.S. mail, postage prepaid, certified mail return receipt requested or by overnight courier addressed (if to Customer) to the address set forth below or (if to AI) to Automotive Innovations, Inc., Inc., Attn: COO, 2300 Main Street, Suite 900, Kansas City, Missouri 64108 or to such other address as maybe provided by notice by the applicable party in accordance with this Section. Notices will be effective upon receipt.
13. Governing Law/Venue.
This Agreement and performance hereunder will be governed by the laws of the State of Missouri, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in Jackson County, Missouri.
Customer may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights is void. AI shall have the unencumbered right to assign this Agreement, in whole or in part, to any third party and may subcontract to any third party all or any part of the Products or Services being provided pursuant to this Agreement.
Nothing in this Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter, including, without limitation, the terms of any purchase order submitted by Customer to AI to procure Services hereunder. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. A party may enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief without prejudice to any other rights and remedies that it may have for a breach and without proof of actual damages and notwithstanding that damages may be readily quantifiable. This Agreement may not be modified or altered except by written instrument duly executed by an authorized officer of each party, and any such other modification shall be null and void and of no legal effect. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.