UPDATED JULY 18, 2023
1. The following Terms of Service (“TOS”) apply to the subscription agreement, (the “Subscription Agreement”) which hereby incorporates the TOS by reference (together, the Subscription Agreement and TOS form the “Services Agreement”) between ItsWoop Technologies LLC dba DealerVantage (“IWT”) and the customer identified on the Subscription Agreement (“Subscriber")(Together IWT and Subscriber are the “Parties” and individually a “Party”). The Services Agreement constitutes the entire agreement between IWT and Subscriber. In the event any definition, term or condition (“Legal Phrase”) included in or incorporated into this TOS conflicts with identical Legal Phrase set forth in the Subscription Agreement, the Legal Phrase contained in the Subscription Agreement shall govern.
2. PLEASE READ THESE TOS CAREFULLY BEFORE ACCESSING OR USING ANY SERVICES (AS DEFINED BELOW) CONTAINED IN THE SERVICES AGREEMENT (the “OFFERED SERVICES" or “SERVICES”). BY USING THE OFFERED SERVICES OR ANY OTHER SERVICES CONTAINED IN THE SERVICES AGREEMENT, SUBSCRIBER AGREES TO BE FULLY BOUND BY THE SERVICES AGREEMENT; OTHERWISE, SUBSCRIBER SHOULD REFRAIN FROM USING SUCH SERVICES FROM THE OUTSET TO AVOID BEING BOUND BY THE TERMS OF THE SERVICES AGREEMENT.
3. Definitions. In addition to the above defined terms, here are other definitions utilized in the TOS:
3.1 “Affiliate” with respect to either Party, it shall mean any legal entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such Party.
3.2 “Anonymized Data” shall mean any elements, components, composites or aggregations of any and all data collected by IWT through and in connection with the Offered Services that does not identify Subscriber Customer or any individual.
3.3 “Authorized User” shall mean the individual(s) authorized by Subscriber to access and use the Services from time to time, provided that such individual(s) may only access or use the Services in their exclusive capacity of employees of, or independent contractors engaged by Subscriber.
3.4 “Business Day” shall mean any day which is not a Saturday, Sunday, or a public holiday in the Commonwealth of Pennsylvania.
3.5 “Confidential Information” consists of the details of the Offered Services, the results of any performance tests of the Offered Services, as well as any other information that is proprietary or confidential and clearly labeled as such. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. For the avoidance of doubt, regardless of anything else herein, any Anonymized Data that is generated by IWT shall not constitute any of Subscriber Customer’s Confidential Information.
3.6 “Dealership” means an entity that is primarily in the business of the retail sale of automobiles, trucks, SUVs and/or other motor vehicles intended for sale to consumers.
3.7 “Dealership Location(s)” is a location(s) specified on the Subscription Agreement as the specific location(s) of the business in connection with which Subscriber is accessing and using the Services.
3.8 “Fees” shall mean the fees payable by Subscriber to IWT for accessing and using the Services. Unless expressly agreed to otherwise, any applicable Fees shall be set forth in the Subscription Agreement.
3.9 “GarageShare Platform” or “Platform” is a cloud-based software licensed for Subscriber’s internal data management, verifying the automobile insurance coverage of Subscriber’s potential or actual customers and decision-making use which also contains data collated and supplied by IWT and/or Subscriber.
3.10 “Insurance Verification” shall mean the portion of the services pertaining to the verification of a Subscriber’s customer’s or potential customer’s, the customers current or prospective vehicles, and the customer’s insurance coverage.
3.10 “Personal Information” shall mean any information that can be used to identify an individual or device, and may include data fields such as full name, physical address, email address, phone number, marketing preferences, company affiliation, or geographic location.
3.11 “Services” shall mean Insurance Verification along with access to GarageShare Platform if requested by Subscriber in the Subscription Agreement, and any other services which may, from time to time, be added or removed by IWT by written notification to Subscriber.
3.12 “Standard Business Hours” shall mean 9:00 am EST to 5:00 pm EST Monday through Friday.
3.13 “Subscriber Customer” or ”Customer” shall mean a former or current customer of the Subscriber, or a potential customer who has made contact with the Subscriber either by electronic or telephonic communication and/or has physically visited a Dealership Location.
3.14 “Subscriber Data” shall mean any material, data, methodologies, software, information or equipment provided by Subscriber to IWT in connection with this Services Agreement.
GENERAL SUBSCRIBER TERMS
RIGHT TO USE SERVICES; AUTHORIZED USERS
4.1 Subject to the terms and conditions of the Services Agreement, IWT grants to Subscriber a limited, revocable, non-exclusive, non-transferable, non-assignable, and non-sublicensable license to permit its Authorized Users to access and use the Services solely for (a) Subscriber’s internal use, and not for the use or benefit of any third party, including any Affiliate, unless IWT has expressly agreed otherwise in a separate agreement and (b) the benefit of its business located at the Specified Location. The Subscription Agreement will specify information relevant to the license grant, including: (a) the license term (b) the Services licensed (c) Dealership Location(s); (d) total number of vehicles sold annually; and (e) other relevant information. Any access or use of the Services outside of the scope expressly permitted above shall require Subscriber or the applicable third party to enter into a separate agreement for services with IWT. Subscriber shall at all times maintain records and logs of the identities of all Authorized Users. IWT shall notify Subscriber in the event of any unauthorized access to, or use of, the Services.
DATA PRIVACY AND SECURITY
5.2 Each Party will at all times during the term of this Agreement: (i) comply with all applicable state and federal privacy, consumer protection, and data security laws, rules and regulations (“Privacy and Security Requirements”); (ii) use, handle, process, collect, maintain, store, transmit and destroy Personal Information related to the Services as permitted under this Agreement or in accordance with lawful written instructions from the discloser; (iii) maintain and enforce security procedures to ensure the confidentiality of Personal Information and the Services; (iv) maintain an information security program aligned to a recognized industry best-practice (e.g. ISO/IEC 27001) with controls to protect against accidental or malicious threats; (v) apply reasonable controls to prevent, detect, protect from, and respond to malicious software or cyber security attacks; and (vi) maintain and communicate its information security and privacy program to all of such Party’s personnel, and contractors as appropriate.
REPRESENTATIONS AND WARRANTIES
6.1 Subscriber and IWT each represents, warrants and covenants to the other Party that:
SUBSCRIBER AGREES THAT EXCEPT AS OTHERWISE PROVIDED IN THESE TOS, THE PRODUCTS AND SERVICES PROVIDED BY IWT ARE “AS IS” AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER IWT, ITS AFFILIATES OR ANY THIRD PARTY PROVIDER MAKES ANY REPRESENTATION, WARRANTY, CONDITION, OR UNDERTAKING, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE, RELATING TO: (I) THE PRODUCTS AND/OR SERVICES OR THE RESULTS OBTAINED IN USING THEM; OR (II) ANY DATA, DOCUMENTATION, OR MATERIALS PROVIDED OR MADE AVAILABLE UNDER THE TOS OR THE SUBSCRIPTION AGREEMENT, INCLUDING: A) THEIR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; OR B) THEIR CONTINUITY, ACCURACY, TIMELINESS OR COMPLETENESS.
Subscriber acknowledges that it has not relied upon any representation, warranty, condition, or undertaking (express or implied) made by IWT, its Affiliates or any Third-Party Provider, except those expressly set forth in the Services Agreement.
7.1 Either Party may be given access to Confidential Information (a “Recipient”) of the other Party (the “Discloser”) in connection with this Services Agreement. Recipient shall hold the Discloser’s Confidential Information in confidence and, not make the Discloser’s Confidential Information available to any third party unless required by law, or use the Discloser’s Confidential Information for any purpose other than the exercise of its rights or performance of its obligations under the Services Agreement.
7.2 Recipient shall take commercially reasonable steps to ensure to protect the Discloser’s Confidential Information from disclosure or distribution to or by its employees or agents in violation of the Services Agreement. Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party except if such loss, destruction, alteration or disclosure was the result of a breach of such Party’s obligations hereunder or as a result of a violation of applicable state or federal laws, rules or regulations. IWT acknowledges that Subscriber’s Data is Subscriber’s Confidential Information. This provision shall survive termination the Services Agreement.
8.1 Subscriber acknowledges and agrees that the Services, Software and all related content, and all worldwide right, title and interest in the intellectual property thereof, is the sole property of IWT and includes valuable trade secrets of IWT, including, but not limited to, the trademarks, “look and feel,” color combinations, layout, and all other graphical elements of the Services, and the copyright in and to the original content of the Services. Except with respect to Anonymized Data, IWT acknowledges and agrees that any data provided by Subscriber is the sole property of Subscriber and may only be used by IWT for the Subscriber’s benefit in performance of the Services.
8.2 Subscriber agrees to notify IWT of all problems, suggestions, feedback and ideas for enhancements which come to Subscriber’s attention during the term hereof, and Subscriber hereby forever assigns to IWT all right, title and interest to such enhancements and all intellectual property rights therein.
TERM AND TERMINATION; SURVIVAL
9.1 Unless expressly stated otherwise herein, the initial term of each Service that Subscriber has subscribed to shall be provided in the Subscription Agreement and shall begin on the effective date of the Subscription Agreement or, if added after that date, the date as the Parties agree upon. The term length, for each such Service (a Service’s “Service Term”) shall be as set forth in the Subscription Agreement. Except as otherwise set forth in the applicable Subscription Agreement, upon the expiration of a Service’s current Service Term, such Service shall automatically renew for a Service Term of the same duration unless either Party provides the other Party with written notice of non-renewal before and up to the expiration of the current Services Term. Subscriber may not otherwise terminate or cancel any Service that it has subscribed to.
9.2 Except as otherwise specifically set forth in the applicable Subscription Agreement, upon cancellation or termination of any or all Services: (a) Subscriber will be responsible for undisputed amounts that are payable for Services through the effective date of termination; (b) all access, Service use, support, and maintenance rights granted to Subscriber hereunder will immediately cease to exist except as otherwise set forth in this Services Agreement; and (c) Subscriber must promptly discontinue all use of the Services and certify, in writing, it’s compliance with the terms of this Section 9.2.
9.3 Each Party may terminate a Subscription Agreement(a) as specifically provided in the applicable Subscription Agreement, or (b) by providing notice to the other Party, if such other Party has breached any material provision of this Services Agreement and does not cure such breach within thirty (30) days after receiving notice of such breach from the non-breaching Party. Termination due to (b) shall have immediate effect.
9.4 This Services Agreement shall automatically terminate without notice if the Subscriber: (i) voluntarily institutes insolvency, receivership or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.
9.5 Any accrued payment obligations hereunder, as well any sections or provisions of this Services Agreement which by their nature would be intended to be applicable following expiration or termination of this Services Agreement, will survive that expiration or any termination for any reason.
9.6 Upon any expiration or other termination of a Subscription Agreement, all licenses granted will immediately terminate. All terms and conditions of this Services Agreement will continue to apply to any Subscription Agreement that have not been so terminated.
DISCLAIMERS; LIMITATION OF LIABILITY
10.1 IWT makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of any information found as part of the Services and assumes no responsibility for any errors or omissions therein. ACCESS TO THE SERVICES IS AT EACH SUBSCRIBER’S OWN RISK. IT IS EACH SUBSCRIBER’S RESPONSIBILITY TO LIMIT THE USE OF SERVICES BY ITS EMPLOYEES, CONTRACTORS OR AGENTS TO ITS AUTHORIZED USERS’ ACCOUNTS AND THE RELATED IP ADDRESSES. IWT SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMMISSIONS MADE BY ANY SUBSCRIBER OR ITS EMPLOYEES, AGENTS OR CONTRACTORS WHEN USING ANY OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT ARE SPECIFICALLY DISCLAIMED TO THE FULL EXTENT PERMISSIBLE BY LAW.
10.2 NEITHER IWT NOR ANY OF ITS AFFILIATES, MEMBERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS OR THIRD-PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOST PROFITS, UNAVAILABILITY OF SUBSCRIBER DATA, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIIVE, OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ANY OTHER DAMAGES IN EXCESS OF THE GREATER OF (A) $100 AND (B) THE FEES PAID TO IWT IN THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
10.3 IWT IS NOT LIABLE FOR CRIMINAL, TORTUOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SERVICES. IN NO EVENT WILL IWT OR ANY OF ITS AFFILIATES, MEMBERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS OR THIRD-PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTUOUS OR ILLEGAL CONDUCT OF IWT’S OTHER CLIENTS OR USERS. IN NO EVENT WILL IWT OR ANY OF ITS AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS OR THIRD-PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, OR ANY CONTENT INCLUDED IN OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES.
11.1 By IWT. Except as otherwise specifically set forth in the Term Document, IWT will indemnify, defend and hold harmless Subscriber and their respective directors, officers, employees, successors and assigns from and against any claim by a third party alleging that the provision of the Services by IWT, when used by Subscriber in accordance with the terms of the Terms Document or this TOS, infringes any patent, trade secret, copyright or other proprietary rights of such third party (“Subscriber Infringement Claim“) and will indemnify and hold harmless Subscriber from any damages (and related and reasonable attorney’s fees) awarded by a court in favor of a third party arising from such a Subscriber Infringement Claim. IWT will have no liability under these TOS or any Terms Document for any Subscriber Infringement Claim arising from: (a) unauthorized use or failure to use Services in accordance with the TOS or Subscription Agreement; (b) the modification of Services (including the combination of any of the same with any other services, software or data) not specifically authorized in writing by IWT or made in accordance with the Services Agreement; (c) compliance with protocols, designs, plans, or specifications furnished by or on behalf of the Subscriber; or (e) any action against Subscriber asserting that the Services infringe any rights over a technology, method or invention that is in such widespread unlicensed or freely or openly licensed use by third parties as to be reasonably considered a fundamental public domain element.
11.2 If Services are held or are believed by IWT to infringe, IWT may choose, at its sole expense, (a) to modify the Services so that they are non-infringing; (b) to replace the Services with non-infringing Services that are functionally equivalent; (c) to obtain a license for Subscriber to continue to use the Services; or if none of (a), (b), or (c) is commercially reasonable, then (d) to terminate the Subscription Agreement for the Services and refund Fees paid for such infringing Services; (i) in case of provision of subscription Services, prorated from the date of the Subscriber Infringement Claim; This Section states the entire liability of IWT and Subscriber’s sole and exclusive remedy for any infringement of third-party proprietary rights of any kind.
11.3 By Subscriber. Subscriber will indemnify, defend and hold harmless IWT, its Affiliates and each of their respective directors, officers, members, agents, employees, successors, assigns and licensors and third party providers, and each of their respective Affiliates, directors, officers, agents, employees, members, partners, successors and assigns (together “IWT Indemnitees“) from and against any claim by a third party alleging that Subscriber Data provided by Subscriber to IWT in connection with the Services and used by IWT in accordance with the terms and conditions of the Services Agreement infringes or misappropriates any patent, trade secret, copyright or other proprietary rights of such third party (“IWT Infringement Claim“) and will indemnify and hold harmless IWT from any damages (and related and reasonable attorney’s fees) awarded by a court in favor of a third party arising from such an IWT Infringement Claim. If Subscriber Data provided by Subscriber to IWT is held or is reasonably believed by IWT to infringe, IWT will cease using such Subscriber Data and will not be liable to Subscriber for any breach or failure to perform under the Agreement. Subscriber will indemnify, defend and hold harmless IWT Indemnities for any losses, liabilities, damages, costs (including reasonable attorneys’ fees) and expenses arising as a result of: (a) in the case of Subscriber, Subscriber’s use of the Services, or (b) Subscriber’s breach of any term of the Services Agreement, or violation of any law, regulation, order or any other legal mandate, or the rights of a third party.
11.4 Indemnification Procedure. The indemnification obligations of each Party under this Section 11 are contingent upon the indemnified Party providing to the indemnifying Party: (a) prompt written notice of the alleged claim (save that failure to provide such notice will not excuse the indemnifying Party’s from its indemnity obligations and duties to defend, except to the extent that the indemnifying Party’s ability to defend or settle the relevant claim is actually prejudiced by such failure); (b) the right to sole control of the defense or settlement of the alleged claim; and (c) reasonable cooperation and assistance, at the indemnifying Party’s expense. If the indemnified Party chooses to participate in proceedings and/or be represented by counsel, it will be at the indemnified Party’s sole cost and expense. The indemnifying Party shall not enter into any settlement or compromise of any such claim, or make any attribution of fault or wrongdoing to, or admission on behalf of, the indemnified Party that would impose on them any liability or obligation without the indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
12.1 Subscriber authorizes the use of the Subscriber’s trademarks, service marks, logos, and other source identifiers (including, without limitation, in its marketing and promotional materials) to identify Subscriber as a customer of IWT; provided, however, that Subscriber may withdraw such authorization at any time by providing IWT with written notice.
13.1. All notices and other communications given or made pursuant to or in connection with this Services Agreement shall be in writing and shall be deemed to have been given: (a) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (b) if sent by facsimile or e-mail of a pdf document, on the date of receipt of a confirmation of transmission; or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth below (or to such other address that may be designated by a Party from time to time in accordance with this provision).
If to IWT:
itsWoop Technologies LLC
211 W. State Street, Suite 205
Media, PA 19063
If to Subscriber:
Address contained in the Subscription Agreement
Email Address contained in the Subscription Agreement
13.2 Notwithstanding anything else in this Services Agreement, in regard to any matter related to any Fees payable by Subscriber to IWT, IWT shall also have the right to instead notify Subscriber’s Billing Contact identified in the Subscription Agreement.
13.3 Subscriber is solely responsible for providing complete and accurate Notice and Billing Contact information to IWT and for notifying IWT of any changes to such information as soon as possible using the notice procedures contained in above paragraph13.1. IWT shall have no liability whatsoever for any notifications that Subscriber does not receive or fails to become aware of as a result of Subscriber’s failure to provide its updated address and/or email address to IWT with. Furthermore, Subscriber shall be fully liable and IWT shall have no liability whatsoever, for any breach of Subscriber’s Services Agreement that results, directly or indirectly, from Subscriber’s failure to update any such required information.
DESCRIPTION OF SERVICES
14.1 Insurance Verification. If Subscriber subscribes to the Insurance Verification service within the subscription agreement, IWT agrees to (a) perform an initial verification whereby IWT uses proprietary or third-party data to confirm that the Subscribers customer(s) or prospective customer(s) reside at the current address provided by the customer, have a trade-in vehicle registered to the address provided; (b) requested by subscriber, order a credit history on the customer to confirm vehicle and financing details provided by the customers; and (c) following the sales, communicate on behalf of the subscriber to the customer via Email or SMS messaging to confirm that the customer has updated their insurance coverage to meet the requirements of their financing (if applicable). All IWT generated messages will include the ability to opt out of receiving future messaging in accordance with applicable laws. Subscriber shall work with IWT to ensure that IWT has an updated list of all recipients who have opted out.
14.2. GarageShare. If Subscriber subscribes to the GarageShare product as listed in the subscriptions agreement, the Subscriber will receive access to IWT’s GarageShare Platform, a digital data management platform whereby the subscriber is able to gather insights on its current customers and the vehicles driven by data Subscriber acquires through its sales process and all correlated activities.
14.3 Term Options. Each of the Services is offered on a term basis as indicated in the related Subscription Agreement.
15.1 Subscriber shall: (a) in order to be permitted to access and use the Services, provide IWT with (i) all necessary co-operation in respect of this Services Agreement; and (ii) data elements reasonably requested by IWT in a widely accepted file format or direct access to Subscriber system to be determined by IWT; (b) comply with all applicable laws and regulations with respect to its activities under this Services Agreement; (c) carry out all other Subscriber responsibilities set out in this Services Agreement in a timely and efficient manner (and in the event of any delays in the Subscriber’s provision of such assistance as agreed by the Parties, IWT may adjust any agreed timetable or delivery schedule as reasonably necessary); (d) ensure that the Authorized Users use the Services in accordance with the Services Agreement and shall be responsible for any Authorized User’s acts or omissions; (e) ensure its network and systems software are compatible with IWT’s Services.
15.2 In connection with the Services, Subscriber shall not (and shall ensure that none of its Authorized Users shall): (a) access, store, distribute or transmit any viruses or any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (vi) causes damage or injury to any person or property; and (b) IWT reserves the right, without liability to Subscriber, to disable Subscriber’s access to any material that breaches the TOS.
15.3 Subscriber shall not (and shall ensure that none of its Authorized Users shall) : (a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, publicly display, demonstrate, transmit or distribute any portion of the Services (as applicable) in any form or media or by any means; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part of the Services; (c) access any part of the Services in order to build competing products or services to the Services; (d) use the Services to provide any services (whether for compensation or not) to third parties; (e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party, except the Authorized Users without IWT’s prior written consent; or (f) use the Services in violation of any applicable law or outside the scope expressly permitted herein. Subscriber shall not violate or attempt to violate the security of the Services.
IWT may investigate occurrences of possible violations and shall cooperate with all applicable law enforcement authorities in prosecuting violators. Subscriber shall, at its sole expense, fully cooperate with IWT with any such investigations and acts of cooperation.
15.4 Subscriber represents and warrants that the Subscriber Data that Subscriber (a) has provided or made available to IWT directly or by an authorized third party in connection with this Services Agreement, is accurate, complete, and up to date, and Subscriber remains solely responsible for maintaining the continued completeness and accuracy while the Services Agreement remains in effect and (b) maintains Subscriber’s IT systems including its Dealer Management System (DMS) such that, at a minimum, Subscriber will maintain user role based access and ACL (access control levels) and security to business sensitive data, single user usage per account and appropriate processes and policies in place for named user data access and usage audits. If such level of security is not maintained, IWT shall not be liable for any damages related to this security deficiency. Subscriber shall immediately notify IWT of any suspected unauthorized use of any account that Subscriber has with IWT or any breach of the security of any such account or of any Service.
15.5 Subscriber further warrants and represents that it has provided all required notices as required by applicable law, and has obtained all consents or authorizations as required by applicable law, from each of its Customers: 1) for sending Insurance Verification related text messages and/or placing Insurance Verification related telephone calls, unless Customers are clearly indicated within the DMS as “Do Not Contact”; 2) obtain vehicle and personal information from third parties, including credit agencies; and 3) to obtain a personal credit report in connection with the Services Agreement.
15.6 Subscriber is solely responsible for maintaining the confidentiality of any password, passcodes, activation keys and the like that may be required so that an Authorized User can access and use any of the Services.
15.7 Subscriber represents and warrants it shall not assist any third party in attempting to do or actually do anything the Subscriber itself is prohibited from doing under this Services Agreement.
In the event Subscriber is engaged or will in the future engage in telemarketing, the following shall apply:
16.1 Subscriber shall comply with all federal or state laws, rules or regulations including, but not limited to: (1) the Telemarketing Sales Rule (16 CFR 310), (2) the Telephone Consumer Protection Act (47 U.S.C. §227) and (3) all applicable consumer protection state and federal laws of the United States. Subscriber further agrees to comply with any US and other jurisdictional laws relating to anti-corruption and agree not to perform, offer, give and receive bribes or corrupt actions in relation to the procurement or performance of this Agreement.
16.2 Subscriber agrees to: (1) disclose the Services solely to its Authorized Users who shall be required to use of the Services to perform their job; (2) require that these Authorized Users hold the maintain the confidentiality of the Services; and (3) have Subscriber personnel identified as Authorized Users to sign a statement identical or substantially similar to the following before using the Services: (i) the “use of GarageShare Platform signifies my declaration, under penalty of perjury, that (a) my use of the GarageShare Platform is necessary for me to meet my employment responsibilities and work purposes and is not for personal reasons or any other purposes; (b) I will keep private my password or code that to access the Platform and (d) I will not download or copy the Data onto portable devices or otherwise transfer or disclose the Data for any use not set forth above”; (4) take steps to prevent the accidental or otherwise unauthorized release of any of the Services; and (5) be liable to IWT for all losses and damages arising out of any breach of the covenants contained in this paragraph.
16.3 Subscriber agrees that: (1) it will comply with all laws, rules, and regulations governing telephone solicitation; (2) it will honor a recipient’s request to be deleted from future telephone solicitations; (3) it will only use telephone numbers provided to make live telephone calls completed without the use of any automated or random-dialing technology; (4) it will not call any recipient whose name is designated as someone who does not wish to receive telephone solicitations; and (5) it will complete all applicable state and federal registrations necessary in order to access the appropriate “Do Not Call” lists prior to making any telephone calls.
16.4 Subscriber represents and warrants that it has performed the opt-out suppression of any individuals who have opted- out of receiving marketing calls from Subscriber and ensure that no marketing calls are made to individuals who have opted-out of receiving marketing calls from. Subscriber shall record and maintain an accurate and current list of individuals who opt-out of receiving telemarketing calls and provide such list to IWT on a bi-weekly basis.
17. IWT shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week; provided, however, that IWT may carry out scheduled and unscheduled maintenance work as necessary from time to time and such maintenance work may impact the availability of the Services. In respect of any scheduled or unscheduled maintenance, IWT will use commercially reasonable efforts to perform such work outside Standard Business Hours and, where appropriate, give Subscriber notice of such maintenance work in advance.
SUBSCRIBER SUPPORT SERVICES
18. IWT will, as part of the Services and at no additional cost to Subscriber, provide Subscriber with support services during Standard Business Hours.
19.1 Compensation. Subscriber agrees to pay IWT the entirety of any Fees due pursuant to and as calculated in accordance with the applicable Subscription Agreement. Subscriber’s payment obligations are non-cancellable and Fees paid are non-refundable. Any quantities purchased cannot be decreased until the relevant Service term has expired. If any invoiced amount is not received by IWT by the due date, then without limiting IWT’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Subscriber’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever, or any credit card processing fees, payment card processing fees or any other fees, costs or expenses reasonably incurred by IWT in connection with any payment by Subscriber, and Subscriber is responsible for any and all such amounts.
19.2 Payment. Subscriber is responsible for providing complete and accurate billing and contact information to IWT and notifying IWT of any changes to this information. If any amount owing by Subscriber for Services is 30 or more days overdue, IWT may accelerate Subscriber’s unpaid Fee obligations so that all such obligations become immediately due and payable and suspend Services.
19.2.1 Any set Fees due for a monthly term of a Service must be paid in their entirety within the first five (5) Business Days of the applicable monthly term.
19.2.2 Any set Fees for any pre-paid Service beyond a monthly term must be paid in full within the first five (5) Business Days of (a) in the case of the initial term for such Service, the effective date of the applicable Terms Document, or (b) in the case of any subsequent term for such service, the first day of such subsequent term.
19.2.3 Any non-set Fees (by way of example only, any per-item Fees) payable in connection with any Service shall be invoiced on a monthly basis and such invoices must be fully paid within five (5) Business Days of receipt.
19.2.4 In the event that any other amounts are payable by Subscriber to IWT pursuant to Subscriber’s Services or any other agreement or arrangement by and between IWT and Subscriber, any such amounts must be fully paid within (5) Business Days of Subscriber’s receipt of an invoice for the same.
19.3. Payment Methods
19.3.1 Credit Card Authorization. IWT will accept Credit Card payments in its sole discretion subject to Subscriber providing IWT with valid credit card information for payment of Fees through submission of the appropriate authorization form attached to the Service Agreement.
19.3.2 Automated Clearing House (“ACH”) Authorization. In lieu of Credit Card payments, if requested by Subscriber, IWT may in its sole discretion, accept payment by debiting through ACH (“ACH Payment”) subject to Subscriber properly and successfully submitting an authorization form accepted by its bank.
19.4 Payment Authorization
19.4.1 For any Services, Subscriber has provided authorization (“Authorization”) directing IWT to initiate monthly payments of monthly Fees for such Services (“Recurring Payments”) by charges to the American Express, VISA, MasterCard, or Discover credit card (“Credit Card”), or through ACH Payment, as specified in the Authorization for the initial subscription term and any renewal subscription term.
19.4.2 Each Recurring Payment charged to the Credit Card or made through an ACH Payment will be in the full amount of any Fees due on such Services. Subscriber also authorizes IWT to charge or initiate adjustments to the Credit Card or Bank Account for any refunds or other billing adjustments owed to or by Subscriber. IWT will automatically charge the Credit Card or Bank Account for Recurring Payments until Subscriber terminates the Authorization by providing IWT adequate notice and a reasonable opportunity to act on the notice. If Subscriber makes a monthly payment by business check which is processed and cleared before the related Recurring Payment is initiated, the related Recurring Payment will not be processed.
19.4.3 Charges to the Credit Card or ACH Payments may be rejected by the issuer of the Credit Card or Financial Institution. Subscriber authorizes and directs the Credit Card issuer or Financial Institution to honor all charges to the Credit Card or Bank Account initiated by IWT. If IWT is unable to charge the Credit Card or Bank Account and receive payment for such Services, Subscriber will immediately make payment using another payment method or as directed by IWT. If any charge to the Credit Card or Bank Account is returned unpaid by the Credit Card issuer or Financial Institution, IWT may charge, and Subscriber agrees to pay, a returned payment fee as well as any other charges permitted by applicable law. IWT may re-process returned charges for a period of 30 days after they were rejected. IWT retains the right to exercise any other legal remedy, including the right to impose late fees and charges and the right to report Subscriber to one or more consumer reporting agencies. Subsequently scheduled Recurring Payments may also be canceled. Notwithstanding that Subscriber has provided Authorization, (a) Subscriber continues to be responsible to pay Fees and all amounts due for such Services on or before the date they are due, and (b) IWT may seek all remedies available to it under these TOS or applicable law if Subscriber fails to pay amounts due under these TOS on or before their due date for any reason; and IWT has the right to suspend Services or access to Services until all Fees and ancillary fees have been paid in full.
19.4.4 Subscriber represents and warrants to IWT that (i) it is the owner of the Credit Card or Bank Account, and (ii) charges to the Credit Card or Bank Account in accordance with these TOS will not be disputed. Subscriber acknowledges that the origination of charges to the Credit Card or Bank Account must comply with the applicable provisions of U.S. law.
19.4.5 Subscriber will provide and continuously maintain with IWT valid and updated Credit Card or Bank Account information.
19.5. Late Payment. If any amount owing by Subscriber is thirty (30) or more days overdue, without limiting IWT’s remedies, IWT may (a) accelerate the entirety of Subscriber’s unpaid Fee obligations under such agreement as well as any other agreement between Subscriber and IWT so that all such obligations become immediately due and payable, and suspend Services, and (b) in its sole discretion, and with no liability whatsoever for doing so, suspend the provision of any or all Services, or any other services, benefits, products, content, or data that it may be obligated to provide under this Services Agreement and/or any other agreement or arrangement between Subscriber and IWT until such time as all such overdue amounts, along with any applicable late fees or interest, have been paid in full. Subscriber acknowledges and agrees that it shall be liable for any amounts incurred by IWT in enforcing any of IWT’s rights to any payments due hereunder including but not limited to reasonable attorney’s fees and any amounts charged by a collections agency or service.
19.6. Fee Increases. IWT has the right to increase the Fees for any of Services in its sole discretion by providing at least thirty (30) days prior written notice in accordance with the TOS. For the avoidance of doubt, no such Fee increase will take effect in connection with the Services that Subscriber has subscribed to until the current term of such Services has been completed. Furthermore, no one-time Fees may be retroactively increased by IWT.
20.1. Subscriber represents and warrants that it has made and secured from its Customers all privacy notifications, permissions, and disclosures, and Subscriber further represents and warrants that Subscriber has secured any consent required by law, rule, or regulation from any applicable parties who own or control information (personal or otherwise) that is transmitted to IWT in connection with the Services for IWT to use and disclose such information as contemplated herein.
20.2 If IWT processes any Personal Information on Subscriber’s behalf when performing the Services (or any part thereof), Subscriber represents, warrants, acknowledges and agrees that: (a) it is entitled to transfer the relevant Personal Information to IWT so that IWT may lawfully use, process and transfer the Personal Information in accordance with this Services Agreement on Subscriber’s behalf; (b) Subscriber shall ensure that the relevant third parties, if required, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable current and future data protection legislation; (c) IWT shall use the Personal Information only in accordance with the terms of this Services Agreement.
20.3 Subscriber shall own all rights, title and interest in and to all of Subscriber’s Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Subscriber’s Data.
20.4 In the event of any loss or damage to Subscriber’s Data, Subscriber’s sole and exclusive remedy shall be for IWT to use commercially reasonable efforts to restore Subscriber’s lost or damaged data from the latest back-up of such Subscriber’s Data maintained by IWT in accordance with its archiving procedure as updated from time to time. IWT shall not be responsible for any loss, destruction or alteration of Subscriber’s Data caused by any third party except if such loss, destruction, alteration or disclosure was the direct result of a breach of IWT’s obligation under the Services Agreement or IWT’s violation of applicable laws, rules or regulations. In the event of any loss, damage or alteration of Subscriber’s Data, Subscriber shall not incur any additional fees to restore Subscriber’s Data.
THIRD-PARTY WEBSITES AND SERVICES.
COMMUNICATIONS TO SUBSCRIBER’S CUSTOMERS.
22.1 Subscriber acknowledges and agrees that, as between Subscriber and IWT, and except as set forth in this Section, Subscriber is responsible for compliance with all federal, state or other applicable laws governing the use of the Services, including but not limited to laws applicable to direct marketing including telemarketing, and privacy.
22.2 Subscriber acknowledges and agrees that the Services provided by IWT merely constitute “routine conveyance,” as such term is defined in 15 U.S.C. § 7702 (CAN SPAM Act), in connection with the transmission of any electronic mail messages on Subscriber’s behalf.
22.3 If Subscriber has agreed to use the Services in respect of the provision by IWT of direct mail and e-mail campaign services in respect of Subscriber’s Customers, Subscriber agrees that Subscriber is solely responsible for maintaining, and making available to IWT, on at least a monthly basis, an accurate, complete and current list of opt-out or suppression requests from Subscriber’s Customers and the communication channels in respect of which such requests were made. Subscriber agrees that if IWT receives any opt-out or suppression request from any of Subscriber’s Customers (whether through Subscriber or through other means or from other sources), IWT will limit the Services consistent with such opt-out or suppression request, unless Subscriber notifies IWT in writing (including by electronic mail) that such request has subsequently been modified or revoked. Subscriber agrees that IWT is entitled to rely on any representation by Subscriber, whether oral or in writing (including by electronic mail), with respect to Subscriber’s’ opt-out or suppression requests, and a failure by Subscriber to include the name and other relevant details of an opt-out request from any of Subscriber’s Customers shall constitute a representation by Subscriber that an opt-out request has not been received. Subscriber’s acceptance of reliance by IWT on any such representation by Subscriber shall absolve IWT of any responsibility or liability whatsoever with respect to all federal, state or other applicable laws governing the use of the Services and of Customers’ opt-out or suppression requests from time to time. IWT shall provide Subscriber, on at least a weekly basis, notice of opt-out or suppression requests that IWT shall have received from any of Subscriber’s Customers in connection with the provision of the Services. Under no circumstances shall IWT be liable to any person whatsoever for Subscriber’s failure to reconcile such requests from Subscriber’s Customers with Subscriber’s systems and records at such times and with such regularity as required by law, by contract or otherwise provided IWT has complied with its obligations under the Services Agreement.
23. IWT uses reasonable security measures and takes reasonable system, process and administrative precautions to protect the security and integrity of email and other electronic communications that Subscriber may send to IWT. Despite all these precautions, no method of transmission over the Internet is entirely secure and IWT cannot guarantee the confidentiality or security of Subscriber’s electronic communications or its contents. Subscriber transmits such information at Subscriber’s own risk and Subscriber should decide very carefully which information Subscriber wants to send to IWT via any electronic communication.
24. Entire Agreement. The Services Agreement constitutes the only terms and conditions concerning the subject matter of this Services Agreement and all other prior oral or written discussions, negotiations, representations, agreements, and understandings are superseded.
25. Amendment and Modification. The TOS may be amended or modified by IWT at any time and shall provide Subscriber notification of such amendment or modification.
26. No Waiver. No term of this Services Agreement may be waived by a Party unless done so in writing by such Party.
27. Reformation. Should a court determine any provision of this Services Agreement void, invalid or unenforceable, the Service Agreement shall be reformed to comply with applicable law or if not subject to stricken if not so conformable, so as not to affect the validity or enforceability of the other conditions of this Services Agreement.
28. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Services Agreement except those parties that a Party may be obligated to defend, indemnify, and hold harmless pursuant to any indemnification obligations contained herein or therein.
29. No Assignment. Subscriber may not assign its Services Agreement without the prior written consent of IWT which may be provided or withheld in IWT’s sole discretion. IWT may assign this Services Agreement to any Affiliate or successor or other entity without Subscriber consent. Any assignment in violation of this Section shall be null and void and without legal effect.
30. Binding Agreement. The Services Agreement is binding on the Parties, their successors, and assigns.
31. Remedies. If Subscriber breaches any term of its Services Agreement, IWT may pursue any available legal or equitable remedy, including but not limited to, direct, consequential and other indirect damages, and injunctive relief. IWT’s remedies are cumulative and not exclusive. Failure of IWT to exercise any remedy or enforce any portion of the terms of this Services Agreement at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of such Services Agreement or any other agreement by and between IWT and Subscriber.
32. Dispute Resolution. Both IWT and Subscriber shall resolve any claim, cause of action or dispute either Party has with the other arising out of or relating to this Services Agreement exclusively in a state or federal court located in Delaware County, Pennsylvania or Philadelphia County, Pennsylvania. The laws of the Commonwealth of Pennsylvania will govern this Services Agreement, as well as any claim, cause of action or dispute that may arise between Subscriber and IWT, without regard to conflict of law principles. Subscriber agrees to submit to the exclusive personal jurisdiction of the courts of the Commonwealth of Pennsylvania, for the purpose of litigating all such claims.
IWT AND SUBSCRIBER HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO THE SERVICES AGREEMENT OR ANY PORTION THERETO.
In any dispute arising under this Services Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees and expenses. Any dispute arising hereunder or related to this Services Agreement or any of the benefits hereunder shall be solely between Subscriber and IWT, and to the fullest extent permitted by law, no dispute or proceeding shall be joined with any other or decided on a class-action basis.
33. For Subscribers who are also Reynolds & Reynolds Company (“Reynolds”) Customers, you agree to the following End User License and whose terms and conditions are hereby incorporated hereto and made a part of these Terms of Service as it pertains only to you:
A. Client’s Product-The Client hardware, software and/or services provided by Client directly to Subscribers.
B. Confidential Information – A party’s Intellectual Property and other confidential research, development, and commercial information that is disclosed to the other party pursuant to or relating to this Agreement. For the avoidance of doubt, Confidential Information includes, but is not limited to, this Agreement, its Exhibits, and all of their terms, and any information relating to the Reynolds Interface, the implementation of the Reynolds Interface, Client’s Product, the Interfaced Product, and the Reynolds System(s). Confidential Information excludes information that: (1) was publicly available at the time it was disclosed to the Receiving Party, or which, through no act or omission of the Receiving Party, becomes publicly available before the Receiving Party discloses it to a third party; (2) the Receiving Party already rightfully possessed free of any obligation of confidentiality before the Disclosing Party disclosed it to the Receiving Party; (3) the Receiving Party rightfully receives without obligation of confidentiality from a third party who is entitled to disclose such information without breaching an obligation of confidentiality; (4) the Receiving Party develops independently without using any of the Disclosing Party’s Confidential Information; or (5) is identified in writing by the Disclosing Party as not Confidential Information.
C. Disclosing Party-The party who discloses Confidential Information to the other party.
D. Intellectual Property – Any and all inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
E. Interfaced Product – Client’s Product(s) that complies with the Reynolds Interface specifications and incorporates the Reynolds Interface.
F. Receiving Party-The party receiving Confidential Information of the Disclosing Party.
G. Reynolds Interface – Processes developed by Reynolds (which include, but are not limited to, software, hardware, specifications, Reynolds System Output, documentation [i.e., formats, elements, and the like], security codes, access methods and other Intellectual Property), that allow for the transfer of data to or from one or more Reynolds Systems.
H. Qualified End User – A single dealership store and application area (or branch) combination (and its associated employees), as defined in the Reynolds System, which has obtained the appropriate license rights to receive Client’s Interfaced Product.
I. Reynolds Interface – Processes developed by Reynolds (which include, but are not limited to, software, hardware, specifications, Reynolds System Output, documentation [i.e., formats, elements, and the like], security codes, access methods and other Intellectual Property), that allow for the transfer of data to or from one or more Reynolds Systems.
J. Reynolds System(s) – Any Reynolds software, hardware, process, product, service, application or DMS provided by, sold and/ or marketed by Reynolds or its affiliates.
K. Reynolds System Input – The data transferred into the Reynolds System from Client’s Interfaced Product for purposes other than logging or requesting data.
L. Reynolds System Output – The data transferred from the Reynolds System to Client’s Interfaced Product for purposes other than logging or requesting data.
33.2 IWT receives only a limited license that (a) authorizes the operation of the Reynolds Interface only with the Interfaced Product and only for one Subscriber for each license fee that is paid; (b) prohibits a Subscriber from copying, disassembling, decompiling, and/or reverse engineering the Interfaced Product and the Reynolds Interface; (c) reserves all rights, title and interest in and to the Reynolds Interface to Reynolds; and (d) prohibits the Subscriber from (i) transfer of or access to the Interfaced Product and the Reynolds Interface to or by third parties; (ii) lending, leasing, sublicensing or pledging of the Interfaced Product and the Reynolds Interface by Subscriber; or (iii) from outsourcing uses of the Interfaced Product and Reynolds Interface;
33.3 The Subscriber is informed that: product(s) provided in connection with the service contain portions of program code owned by third party licensors and such licensors will be entitled to enforce this License as an intended third party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third party licensors; and that ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
33.4 The Subscriber is informed that all rights to use or maintain possession of the Interfaced Product and the Reynolds Interface will terminate upon the termination of the agreement between Reynolds and IWT or the agreement between IWT and the Subscriber, whichever comes earlier;
33.5 The IWT and Subscriber shall comply with the requirements of any applicable law, including but not limited to the Gramm-Leach-Bliley Act and its implementing regulations (“GLBA”), and to the extent applicable, the privacy laws of any state, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), and any other relevant privacy laws of Canada or of any province of Canada or other relevant jurisdiction;
33.6 To the greatest extent permitted by applicable law, the Subscriber grants its DMS provider and IWT permission to access any nonpublic personal information of a customer of a Subscriber (“Customer NPI“) to the extent necessary to provide the services to the Subscriber (including the Interfaced Product and the Reynolds Interfaces) and specifically permits Reynolds and IWT to provide access to Customer NPI to one another for that purpose.