These Terms of Service (the “Terms”) are entered into between the customer (“Client”) indicated in the order form for services (“Services”) and us, the entity identified in the Order Form as the provider of services (referred to as “we,” “us” or “our” and Client may also be referred to in these Terms as “you” or “your”). References to Client includes Client’s employees, contractors, and authorized users.
To use or receive the Services or upgrade to any Service, you must agree to these Terms by indicating your agreement via click-through acceptance or by executing an order for such Service or upgrade (whether online or in electronic copy, the “Order Form”). By agreeing to these Terms, you represent that you have the authority to bind the company you represent. These Terms will automatically renew for the period set forth in the Order Form as the “Renewal Term” and in accordance with Section 6 of these Terms.
The Terms consist of two parts: (1) these General Terms of Service, and (2) the terms specific to a certain Service included in the Service Specific Addendum attached hereto and incorporated by reference herein. In the event of a conflict between the Order Form, these Terms, or the Service Specific Addendum, the parties agree that solely to the extent of any such conflict, the order of precedence will be the Order Form, followed by the Service Specific Terms, followed by these Terms. Where we use the term “including” in these Terms, it means including without limitation.
We will provide the Services indicated in the Order Form according to the description in the Order Form and the applicable Service Specific Terms. You acknowledge that our ability to provide the Services depends on your full and timely cooperation with us, which you agree to provide. You will provide us with access to and use of all information, data, and documentation that we reasonably require. From time to time, we may make changes to the Services and reserve the right to modify, features, or components thereof, or our delivery method. If you are required to install any scripts on your systems or devices, you are responsible for maintaining the script and ensuring that the script is operational. We do not monitor the operation of scripts and are not responsible for the failure of a script to operate.
From time to time, an original equipment manufacturer (“OEM”) may make programs available to the OEM’s certified dealers. Such programs may include Services that we offer to certified dealers at no cost or at a discount, as indicated on an Order Form. If you are a certified dealer of an OEM, and you become eligible for an OEM program, you understand that the program is directed by the OEM, the OEM determines the Services to be offered, which dealers are eligible to receive Services, the duration of any Services, and any other rules or requirements related to the program. The OEM may change, modify, or discontinue the program at any time. The OEM may require dealers to agree to separate terms and conditions related to the program, or otherwise direct the use of such Services. We are not responsible for the OEM program, or the content or materials made available by the OEM. Where the OEM program Services are made available to you for no cost, we do not make any representations, warranties, or indemnities with respect to such Services and they are provided to you “as is” and “with all faults.”
Restrictions on Use of Services. Except for your authorized employees or contractors whom you authorize to access and use the Services on your behalf (each an “Authorized User”), you will not permit any third-party to access or use the Services, software, technology, or any other materials provided to you except as expressly permitted in these Terms. In addition, you and your users will not, and are prohibited from: (a) copying, modifying, or creating derivative works or improvements of the Services; (b) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, or otherwise making available any Services, Our Data (as defined in Section 3), Third Party Data (as defined in Section 3), or any software or materials to any third-party, including in connection with the internet or any time-share, service bureau, software as a service, cloud, or other technology or service, except as expressly authorized in these Terms; (c) reverse engineering, disassembling, decompiling, decoding, adapting, or otherwise attempting to derive or gain access to any portion of the Services, in whole or in part, in a manner that we did not authorize; (d) bypassing or breaching any security device or protection used by the Services or accessing or using the Services other than by an authorized user through the use of his or her own then valid access credentials; (e) inputting, uploading, transmitting, or otherwise providing to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (f) damaging, destroying, disrupting, disabling, impairing, interfering with, or otherwise impeding or harming, in any manner, the Services or the provision of the Services, in whole or in part; (g) removing, deleting, altering, or obscuring from the Services any of our trademarks; (h) accessing or using the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, data privacy right, or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data), or that violates any applicable law; or (i) accessing or using the Services for purposes of developing a competitive offering. You will not use the Services in any manner that is or could be construed as obscene, threatening, abusive, defamatory, libelous, or which encourages criminal conduct. You are responsible for the conduct of your users and their use of the Services.
Terms Related to Data.
Data. As used in these Terms: (i) “Client Data” means the information that we process on your behalf, any lead information that you receive from the Services, and information identified as Client Data in the Service Specific Terms; (ii) “Client Content” means any copy, creative materials, marketing materials, or other similar content that you provide to us in connection with the Services; (iii) “Third Party Data” means the data either party receives from an original equipment manufacturer or other third-party for inclusion into or use with the Services; (iv) “Our Data” means the data that we collect about your use of the Services, the operation or functionality of the Services, statistical data, or data that we provide to you as part of the Services (including data we that we use or provide as an enhancement to any Third Party Data or Client Data); and (v) “Consumer Data” means any information that you collect through the Services, or that we collect on your behalf, about a consumer.
Data Rights. You hereby grant to us a limited, non-exclusive right to access, copy, transmit, download, display, publish, modify, create derivatives of and otherwise reproduce Client Data, Consumer Data, and Client Content as necessary to provide, support, and improve the Services. With respect to Our Data, we hereby grant to you a limited, revocable, non-sublicensable, non-transferable, non-exclusive right to access, copy, transmit, download, display, and to reproduce Our Data solely as necessary to receive and use the Services during the Term and for no other purpose. You are prohibited from disclosing Our Data to any third-party unless we expressly authorize such disclosure. You acknowledge and agree that we may share Our Data, including where Our Data identifies your business and your users, with third parties with whom we both have a contractual relationship (including original equipment manufacturers, distributors, and any of their authorized contractors or agents) and you hereby consent to our disclosure of Our Data to such third parties. You agree to notify us if you are no longer an authorized dealer to any manufacturer.
Client Obligations. You are solely responsible for Client Data, Consumer Data, and Client Content. You represent and warrant that (i) Client Data, Consumer Data, and Client Content will not (1) infringe any third-party intellectual property right, including third-party rights in patent, trademark, copyright, or trade secret; or (2) constitute a breach of any other right of a third-party, including any right that may exist under contract or tort theories; (ii) you will comply with all applicable local, state, national, or foreign laws, rules, regulations, or treaties in connection with the collection, processing, storing, and sharing of Client Data, Consumer Data, and Client Content, and with respect to your use of the Services, including those related to data privacy, data protection (including the California Consumer Protection Act where applicable), communications, Telephone Consumer Protection Act with respect to calling or text messaging any consumer, SPAM laws (including CAN-SPAM, CASL or others as they relate to emailing consumers), or the transmission, recording, or storage of technical data, personal data, or sensitive information. You are prohibited from using the Services to transmit sensitive information such as health information. Unless you have purchased our e-commerce module that includes a third-party credit card transaction application, the Services are not intended to process PCI (Payment Card Industry) data, and you are prohibited from using our Service to process PCI data.
The Services may integrate with or receive information from third-party sources, services, software, applications, platforms (“Third-Party Service”). A Third-Party Service may make changes to its service, or components thereof, or suspend or discontinue its service with or without notice. The availability of the Third-Party Service may depend on your compliance with the Third-Party Service terms. The Third-Party Service may have access to Client Data, Client Content, or Consumer Data. We do not monitor or review the practices of any Third-Party Service and are not responsible for how the Third-Party Service provides its service or for how it transmits, accesses, processes, stores, uses, shares, or provides data. We expressly disclaim all liability related to or arising from any Third-Party Service, including liability related to or arising from any updates, modifications, outages, delivery failures, corruption of data, loss of data, use of data, security, discontinuance of services, or termination of the Third-Party Service. You are solely responsible for ensuring that you comply with all Third-Party Service terms and conditions.
If the Order indicates that you purchased Podium products, this Section 4(a) applies to such purchases. Podium products are provided to you by Podium Inc. (“Podium”). As a reseller of such products, we provide support and billing services. You agree that these Terms do not apply to the Podium products but rather the Podium terms available at https://www.podium.com/terms-and-conditions/ (“End User Terms”), and any updates thereto (of which Podium will notify you), govern your use of the Podium products. You agree that upon your execution of an Order purchasing Podium products, End User Terms are entered into directly between you and Podium. You understand and acknowledge, we are not a party to the Podium End User Terms. You represent and warrant that your present and future use of the Podium products shall be in compliance with the Telephone Consumer Protection Act (“TCPA”), as defined under 47 U.S.C.§ 2227. You agree that, in the event of a breach of the End User Terms, you will seek remedies directly from Podium, Inc. and you hereby waive and release us from any liability or breach arising out of the Podium products, the End User Terms, or violations of the TCPA.
Fees & Payment Terms. You will pay the fees for the Services in the amounts and at the times specified in the Order Form. All fees will be paid in USD unless otherwise specified in the Order Form. Unless otherwise specified in the Order Form, fees are due 30 days from the date of invoice. If you fail to make any payment when due, we may charge interest on past due amounts at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. You will reimburse us all costs that we incur in collecting any late payments, including attorneys’ fees, court costs, and collection agency fees. We may increase the fees for any Service no more frequently than once during any 12-month period, or any time upon renewal.
Billing Cycles. We will invoice you according to the terms set forth in the Order Form. Depending on the Service, billing will either begin on the Effective Date or on the Activation Date. The “Effective Date” with respect to any Order Form is the date the Order Form is executed by Client and the “Activation Date” for each Service is defined in the Order Form. If the Order Form indicates that Services are billed monthly, you will pay for the Services on a monthly basis beginning on either the Activation Date or the Effective Date, as indicated in the Order Form, for the full month of fees (i.e. fees are not prorated); provided that, if a free-month(s) promotion applies to any Service that is invoiced on a monthly billing cycle, we will bill you for the first month of Service on the Effective Date and begin monthly billing following the expiration of the promotion period.
Promotions. As part of a promotion, we may offer the Services to you for no-charge for a specific period, for a percent discount, or other promotion as indicated in the Order Form. Unless otherwise agreed to in the Order Form, promotions expire (i) at the end of the Initial Term for promotions that are percentage discounts; (ii) after the number of promotional months indicated in the Order Form; or (iii) in all other cases at the end of the Initial Term. For promotions that include promotional months, the Initial Term will be extended by the number of promotional months indicated in the Order Form.
Digital Marketing Service Billing. If you purchase Digital Marketing Services, additional terms related to billing are specified in the Service Specific Terms for Marketing Services.
ACH; Credit Cards. If you provide us with a credit card number or other electronic method of payment, you authorize us to charge your method of payment for the amount specified in the Order Form at the times indicated in the Order Form, and for any overages incurred. If the Order Form indicates that you will pay the fees over a recurring period, you authorize us to charge your card for such recurring fees as they become due.
Overages. Certain Services may be invoiced based on your consumption, upon the use of the Service, or use of the Service on additional computers at one or multiple physical locations and, in such case, when your consumption or use exceeds the agreed to limitations, an overage will apply. You will pay such overage upon receipt of invoice. If you provide us with a credit card, you authorize us to charge your credit card for any such overages when they are incurred or on your next billing cycle, at our discretion.
Taxes. All fees and other amounts payable under these Terms are exclusive of taxes or similar assessments. Without limiting the foregoing, you are responsible for all sales, use, excise taxes, or any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
Term & Termination.
Term. The term will commence on the Effective Date and it will continue for the period specified in the Order Form (including any promotional period, where applicable) (the “Initial Term”). The Initial Term will automatically renew for successive periods equal to the renewal period indicated in the Order Form, unless otherwise indicated in the Order Form, if no renewal term is indicated in the Order Form, the Initial Term will automatically renew for successive periods equal to the Initial Term. (each a “Renewal Term” and the Renewal Term with the Initial Term are collectively, the “Term”).
Termination. We may terminate these Terms, and the Services if (i) you fail to pay any amount when due and such failure continues for 30 days following our written notice thereof; or (ii) you are in breach of these Terms and such failure continues for 30 days following our written notice thereof. You may terminate these Terms, and the Services (iii) if we are in material breach of any material term and such failure continues for 30 days following your written notice thereof; or (iv) any Renewal Term by providing at least 30 days’ written notice prior to the Renewal Term. Either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (v) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (vi) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (vii) makes or seeks to make a general assignment for the benefit of its creditors; or (viii) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Authorized Dealer Status. Our ability to provide information, data or certain Services may depend on your status as an authorized dealer of a manufacturer pursuant to our contractual relationship with the manufacturer. We reserve the right to terminate the Services (including portions thereof) or these Terms if (a) you cease to be an authorized dealer of such manufacturer and such manufacturer requires that you be an authorized dealer in order to access or receive the Services; (b) or where our contract with such manufacturer is terminated.
Suspension of Service. We may suspend, terminate, or otherwise deny your access or your user’s access to all or any part of the Services if: (i) we believe that you or a user is in breach of these Terms, if you or a user has accessed or used the Services beyond the scope of the rights granted, or for a purpose not authorized pursuant to these Terms; (ii) if you or your users are engaged in any activity that appears to be fraudulent, misleading, or unlawful relating to or in connection with your use of the Services; or (iii) if you have not paid any fees due hereunder when due. This Section does not limit any of our other rights or remedies, whether at law or in equity.
Effect of Termination. Upon any expiration or termination of these Terms, except as expressly otherwise provided in these Terms: (i) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (ii) you will discontinue all use of any Services, Our Data, or other materials that we provided to you, you will remove any software or scripts that we provide you from your systems, and we will disable access to any online Services; (iii) in the case of our termination for your breach of these Terms, any fees outstanding for the remaining Term will become immediately due and payable. In no event will we issue any refund of fees.
Intellectual Property Ownership. As between us, all right, title and interest in and to the Services, Our Data, any templates we provide to you, the information technology infrastructure including the software, hardware, databases, electronic systems, networks, and all applications, APIs, scripts or Client-Side Software required to deliver the Services, or that we otherwise make available to you, including all documentation regarding the use or operation of the Services or any materials referred to as our intellectual property in the Services Specific Terms (collectively “Intellectual Property”) are our sole and exclusive property. Except as expressly stated herein, nothing in these Terms will serve to transfer to you any right in or to the Intellectual Property. We retain all right, title and interest in and to Intellectual Property.
Confidential Information. The term “Confidential Information” means (a) the non-public information of either party, including but not limited to information relating to either party’s product plans, present or future developments, customers, designs, costs, prices, finances, marketing plans, business opportunities, software, software manuals, personnel, research, development or know-how; (b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; or (c) in the case of Client, Client Data, Consumer Data, and, in our case, Our Data and Third-Party Data. Except for Our Data which shall always be Confidential Information, “Confidential Information” does not include information that: (i) is in, or enters, the public domain without breach of this these Terms; (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party, as evidenced the receiving party’s records; (iv) the receiving party developed independently without reference to the Confidential Information; or (v) information that a party is expressly permitted to disclose pursuant to these Terms. Each party agrees that (a) it will not disclose to any third-party, or use for the benefit of any third-party, any Confidential Information disclosed to it by the other party except as expressly permitted hereunder; and (b) that it will use at least reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control but no less than the measures it uses to protect its own confidential information of a similar nature. Either party may disclose Confidential Information of the other party (a) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body; provided, that, the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to allow the disclosing party to contest such order or requirement; or (b) to the parties’ agents, representatives, subcontractors or service providers who have a need to know such information; provided that, such party shall be under obligations of confidentiality at least as restrictive as those contained in this Section. Each party will promptly notify the other party in writing upon becoming aware of any unauthorized use or disclosure of the other party’s Confidential Information. Each party acknowledges and agrees that a breach of the obligations of this Section may result in irreparable injury to the disclosing party for which there may be no adequate remedy at law, and the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by the recipient of Confidential Information.
Review of Use. If Client’s usage of a Service exceeds the number of licenses or the scope of license purchased, Client will promptly pay us for actual usage based on our then-current list price. With prior written notice, we may ourselves or through an independent auditor, review Client’s Service usage and related records during your normal business hours to confirm compliance with these Terms (a “Review”). You will provide us or the auditor with access to the relevant records and facilities for the Review. We will treat all information disclosed during the Review as confidential information and will only use or disclose such information as required by law or to enforce our rights under these Terms.
Early Access Use and Suggestions.
Early Access Program. We may offer pre-release feature or functionality capabilities for experimental testing and evaluation (“Early Access Program” or “EAP”). If Client chooses to participate in the Early Access Program, and we authorize Client to participate in such EAP, we grant to you a temporary, nontransferable, nonexclusive license for experimental use to access, test, and evaluate pre-release feature or functionality capabilities. The restrictions set out in Section 2 apply to pre-release features or functionality. You will evaluate pre-release capabilities under normal conditions as directed by us. You acknowledge the experimental nature of pre-release capabilities and agree not to rely on correct functioning or performance of pre-release capabilities. You further acknowledge that pre-release capabilities have not undergone full testing by use and may contain defects. We shall not be liable for Client’s use of pre-release capabilities. You are advised to safeguard important data and use caution. You agree to maintain pre-release capabilities in confidence and to restrict access to pre-release capabilities, including any functionality, methods and concepts, solely to those employees authorized to perform pre-release capability testing. Any written evaluations and all inventions, product improvements, modifications or developments that we conceived or made during or after these Terms, including those based partly or wholly on your feedback, are our exclusive property, and we have exclusive rights, title and interest in all such property.
Customer Suggestions. You may choose to, but are not required to, provide suggestions, data, or other information to us regarding possible improvements in the operation, functionality, or use of the Service, whether in the course of using the Service, evaluating the Service or otherwise, and any resulting inventions, product improvements, modifications or developments made by us, at our sole discretion, will be our exclusive property.
Indemnity. You will defend, indemnify, and hold us, our affiliates and each of our and our affiliate’s officers, directors, employees, agents, successors, and assigns harmless from and against any and all damages, losses, costs or expenses (including reasonable legal fees) that we incur that results or arises from, or are alleged to result or arise from: (a) Client’s breach of these Terms; (b) Client’s use of the Service in a manner that violates applicable law, including laws that apply to marketing or advertising, consumer warranties, privacy, consumer data, or consumer credit; (c) Client’s breach of any term or condition required by an original equipment manufacturer or Client’s failure to be an authorized dealer of any original equipment manufacturer; (d) any materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client, or the customization of any Services in accordance with any specifications or directions provided by or on behalf of Client; (e) any Third-Party Service or any claim that arising from third-party data; or (f) Client’s negligent, willful, fraudulent or intentional acts or omissions. As used in this Section, references to Client include Client’s employees or users of the Services.
Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THESE TERMS FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY, OR THE AGGREGATE LIABILITY OF OUR AFFILIATES, LICENSORS, SERVICE PROVIDERS, ORIGINAL EQUIPMENT MANUFACTURES, OR SUPPLIERS, WHETHER RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAID BY CLIENT UNDER THESE TERMS IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. WE SPECIFICALLY DISCLAIM LIABILITY FOR (A) ANY LOSS OF USE OF TECHNOLOGY, LOSS AND CORRUPTION OF DATA, OR ANY COSTS ASSOCIATED WITH SYSTEM OR DATA RECOVERY; (B) ANY LIABILITY RESULTING FROM ERRORS IN INSTRUCTIONS, SERVICE BULLETINS, DIAGRAMS, SPECIFICATIONS, PARTS IDENTIFICATION, OR PARTS DESCRIPTIONS; (C) ANY THIRD PARTY CLAIMS; (D) DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL; OR (E) ANY LIABILITY ARISING FROM YOU OR YOUR USERS USE OF THE SERVICES IN VIOLATION OF LAW OR THESE TERMS.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner.
Disputes. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, will be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The award rendered by the arbitrator shall be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. The place of arbitration shall be Multnomah County, Portland Oregon. Except as may be required by law, neither a party nor the arbitrators may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. For disputes where the amount at issue is less than $100,000, there will be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondents of the request for arbitration, or, in default thereof, appointed by the AAA in accordance with its Commercial Rules. For disputes where the amount at issue is greater than $100,000, there will be three arbitrators agreed to by the parties within thirty (30) days of receipt by respondents of the request for arbitration or, in default of such agreement, by the AAA. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
Severability; No Waiver. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Assignment. Client will not assign, delegate, or otherwise transfer any of its obligations or performance under these Terms, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without our prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, except that Client may transfer its rights and obligations under these Terms in connection with a merger, consolidation, or reorganization of Client. No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under these Terms. We may assign, delegate or otherwise transfer our rights, obligations or performance under these Terms with or without consent. Any other purported assignment, delegation, or transfer in violation of this Section is void.
Modifications. We may make modifications or changes to these Terms. If we make a modification that we deem material, we will provide notice to you (email notice being sufficient) which will be effective 30 days following our notice of the modification and, if you do not agree to the modified terms, you may object to the modification by providing us with notification of your objection (in reasonable detail) during such 30-day notice period. Upon receipt of your objection, we may choose to modify the Terms that apply to you such that they resolve your objection, or we may enter into good faith negotiations regarding your objection in an attempt to resolve your objection. If you fail to provide us with notice of your objection within such period, you will be deemed to have accepted these Terms as modified. We may make non-material changes to these Terms by posting the revised version at the URL where these Terms are available.
No Third-Party Beneficiaries. These Terms are entered into for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature or by reason of these Terms.
Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing under these Terms, (except for any obligation to make payments), when and to the extent such failure or delay is caused by any circumstances that constitute acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation (collectively, a “Force Majeure Event”).
Language. The parties have required that these Terms and notices relating hereto be drawn up in the English language. Les parties aux présentes ont exigé que la présente EULA et tous les avis y afférant soit rédigés en langue anglaise.
Notice. Any notice request, consent, claim, demand, waiver, or other communications under these Terms intended to have legal effect, must be delivered (a) in the case of Client, in writing addressed to Client’s address or email address in the Order Form, or in our case, to 26600 SW Parkway Ave #400, Wilsonville, OR 97070, and in each case, notice will be deemed effectively given when (i) received if sent by a nationally recognized overnight courier where signature is required; or (ii) if provided to Client, notice may be provided via email to the Client contact in the Order Form with confirmation of transmission and deemed effectively given if sent during the Client’s normal business hours, and on the next business day, if sent after normal business hours.
Entire Agreement. These Terms together with the Order Form, the applicable Service Specific Terms Addendum and any other documents expressly incorporated into these Terms constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
SERVICE SPECIFIC TERMS ADDENDUM
1. Website Services. The Services, for the purpose of these Website Service Specific Terms, means the delivery of a website (“Website”) and related services, including (if applicable) website hosting and email hosting services, and in each case as described in the Order Form. Acceptance of the Website will be deemed to be the earlier of the date that we publish the Website the site or 45 days from the Effective Date. We may obtain website hosting services on your behalf and such hosting services are provided by Third Party Providers to us pursuant to their terms.
2. Americans with Disabilities Act. You acknowledge that you are required to comply with the Americans with Disabilities Act (“ADA”) regulations with respect to the accessibility of the Website. As an add-on to the Website Services, we offer a Service that enables websites to meet the Web Content Accessibility Guidelines (“WCAG”). The WCAG are guidelines that are published by the Web Accessibility Initiative of the World Wide Web Consortium. If you purchase this add-on Service, we will follow the WCAG standards. If you choose not to purchase such Service, you understand and agree that you may be subject to third party suits regarding the accessibility of your Website, your Website may be deemed noncompliant, and you expressly assume those risks. In addition, you understand that that the WCAG are guidelines developed by a third party and are not a regulation or a legal safe harbor. Following the WCAG does not guarantee compliance with the ADA. Therefore, we expressly disclaim any liability arising from or related to your Website’s compliance with the ADA.
3. Data. In addition to the definition of data in the Terms, the following definitions include: (a) Client Data includes information (including payment information) you send or receive from the Website or email hosting services (if included); and (b) Client Content includes your logo, images, pictures, advertisements, and text (to the extent the foregoing do not constitute our templates).
4. Consumer Data. You represent and warrant that you will collect Consumer Data in accordance with all applicable laws, including the Fair Credit Reporting Act, the rules and regulations promulgated by the Federal Trade Commission on unfair or deceptive practices, the rules and regulations promulgated by the Consumer Financial Protection Bureau including Truth in Advertising rules and Regulation Z, and any other applicable consumer data protection of financial protection laws. You are solely responsible for ensuring that the Consumer Data you collect is collected, processed, stored, used, and shared in accordance with applicable law. You are solely responsible for ensuring the integrity and security of Consumer Data.
5. Ownership; Templates. We create or license the Website template, including all images, fonts, graphics, or other creative content, that we provide you and these materials are included in the definition of Intellectual Property. We grant you the limited license to publish, display and access and use Intellectual Property during the Term. You are prohibited from copying, publishing, displaying or otherwise exploiting Intellectual Property (including sharing such materials to a competitor of ours or directing a competitor to use such materials on your behalf). In addition, we may offer you a template form to collect Consumer Data or template policies, including template disclosures, consents, or policies. We do not and cannot provide legal advice. We do not review your practices or policies and do not represent, warrant, or guarantee that the use of our templates is legally sufficient or ensures legal compliance. We are under no obligation to, and do not, monitor the consumer credit or data privacy laws that may apply to your business. You are responsible for ensuring that any use of the template form (including any consent) is accurate and that it meets and complies with all applicable legal requirements.
6. Restrictions. In addition to the restrictions in the Terms, you acknowledge and agree that you may not use our servers as a source, intermediary, reply to address, or destination address for mail bombs, Internet packet flooding, packet corruption, denial of service, or other abusive activities that threaten the stability of our network or damage the systems of, or cause a disruption of Internet services. Use of your Website as an anonymous gateway is prohibited. You are solely responsible for maintaining an independent backup copy of your Website and Client Content. You are prohibited from using the Services to disseminate or transmit unsolicited messages, unsolicited commercial email, or unreasonably large volumes of email.
Marketing & Listing Services Terms
1. Marketing Services. Marketing Services may include any one or all of the following: search engine optimization, search engine marketing, marketing automation, social media management (defined below), or other marketing services as described in the Order Form (“Marketing Services”). The Services may also include “Listing Services” which mean the listing of inventory, parts, or accessories on various third-party websites (such as E-Bay, Craigslist, or other ecommerce sites). As part of the Marketing Services, we may create or provide you with SEO strategies (including specific words) and creative materials that we develop or create as a result of our expertise. Any SEO strategy, words, or other creative material that we create or develop are our Intellectual Property and we provide you the limited right to use our Intellectual Property during the Term and solely in connection with our provision of, and your receipt of, the Marketing Services. Following the termination or expiration of the Marketing Services, you will remove all Intellectual Property that we provided to you from your websites or social media sites.
2. Fees; Billing; Budgets; Credits. The Marketing Services fees include “Marketing Spend,” “Management Fees,” and may include a one-time nonrefundable setup fee. Management Fees are the recurring monthly fees that are fixed and committed spend during the Term. Management Fees are not cancelable or refundable. Marketing Spend is the fee for marketing activities for advertising placement the applicable third-party platform (e.g. Google, Facebook) based on a monthly budget which you set. The Marketing Spend also includes our margin of up to 30%. If your desired results require additional spend, or we incur an overage in excess of the Budgeted amount, we will notify you that the Budget needs to be increased and, you will pay such additional amounts promptly. If we do not spend Budget during the Term, we will credit such amount to your next invoice unless the credit amount is de minimis (as determined by us in our sole discretion) and in which case we will not credit any amounts. In no event will we refund any amounts to you.
3. Pausing Your Marketing Campaigns; Termination. Except for Customers under monthly contracts, at any time during the Term, so long as we have not made purchases on your behalf, you may suspend any Marketing Spend temporarily. You understand that suspending the Marketing Spend does not suspend your obligation to pay the Management Fees and we will continue to invoice and you will pay the Management Fees during the Term notwithstanding any suspension of Marketing Spend. Notwithstanding Section 6(b)(iv) of the Terms, for monthly contracts, Customer may terminate any Renewal Term with 15 days written notice prior to the Renewal Term.
4. Client Obligations. In order for us to perform the Marketing Services, you must (a) provide us with access to applicable accounts (like Google Analytics or Facebook); (b) install and maintain a pixel or script to allow us to track traffic; and (c) assist us with the development of keywords.
5. Reporting. We will provide you with reporting regarding the activities performed and the results of such activities. You understand that the performance of the Marketing Services may take time to see results or may change or fluctuate over time due to changes in search engine algorithms, site rankings, competition for key words, policies of the search engine platform or third party platform, changes in indexed directories, or other changes or factors. Therefore, we do not guarantee that the Marketing Services will achieve any specific result or any result within a specific timeframe or campaign. If you change your website, the changes may impact the Marketing Services.
6. Social Media Management. The “Social Media Management” Services include curated content postings, optimized social media pages, and posting of select manufacturer’s promotions through the Customer’s Facebook and Twitter accounts, as applicable. The complete list of Social Media Management Services is defined in the Social Media Management product sheet, incorporated in this Agreement by reference. Social Media Management Tier 1 Services include management of one (1) Facebook business page for one Customer location, one (1) Google My Business listing for Google posts for one Customer location, and one (1) Twitter account for one Customer location, if applicable. Social Media Management Tier 2 Services including management of one (1) Facebook business page. Additional Customer locations may be added for an additional fee. Customer must grant administrative level access to the Customer’s Facebook business page to start the Social Media Management Tier 1 or Tier 2 Services. In the event administrative access cannot be granted to us or logins cannot be provided, we will create a new Twitter account and/or Facebook account on Customer’s behalf. Except for “liking” or “sharing” posts through the customary methods on a social media site, Customer may not copy, reproduce, display, use or repost any content in any manner or in any media without our prior written consent, including reproducing content from one Customer location’s Facebook page or Twitter account to any other Facebook page or Twitter account not covered by this Agreement.
eCatalog & Data Enhancement Services
1. eCatalog Services. For purposes of these Service Specific Terms, the “eCatalog Services” mean the parts, inventory, garment or accessories data which is made available in an online list or through a mobile application. eCatalog Services provide data from third-party manufactures consisting of, where applicable, notes, service bulletins, specifications, diagrams, drawings, illustrations, inventory status, specifications (the “eCatalog Data”). The eCatalog Services may be accessed by your employees, contractors or agents or it may be made available to your website visitors. You are responsible for redirecting users from your website to the eCatalog Services.
2. Data Enhancement Services. For purposes of these Service Specific Terms, the “Data Enhancement Services” means the combination of eCatalog Data, data that is provided to you from a third-party and information from other sources. For purposes of the Data Enhancement Services, “Client Data” means any data that you provide to us for inclusion in the Services (excluding data owned by a third-party) and “Our Data” includes the results of the Data Enhancement Services, subject to any rights of the third-party or third-party manufacturer. With respect to any historical Client Data, you are responsible for extracting, converting, formatting, and otherwise ensuring that your historical Client Data is useable with the Data Enhancement Services. Historical data will be imported as individual table data in static form and, due to the complexity of historical data relationships, we cannot import historical data relationships or table relationships. Historical Client Data may only be viewed as archived history within the Data Enhancement Services. Any data conversion fees incurred is a separate, non-refundable fee.
3. License Restrictions. With respect to the eCatalog Services and the Data Enhancement Services, where we receive eCatalog Data from a third-party manufacturer, your right to use the eCatalog Data we provide is limited by the license terms that we agree to with the associated third-party manufacturer. Subject to the license limitations in our agreement with the third-party manufacturer or licensor, we hereby grant you the limited, revocable, non-sublicensable, non-transferable right to use the eCatalog Services, Data Enhancement Services or eCatalog Data solely for the purpose of receiving the applicable Services during the Term. We may restrict or revoke your right to use such data or modify the eCatalog Data at any time with or without notice. We are not responsible for the accuracy or completeness of a third-party manufacture’s eCatalog Data, including any instructions or specifications.
4. Intellectual Property Ownership. The third-party manufactures or licensors of the eCatalog Data own the right, title, and interest, including all related intellectual property rights, in and to the eCatalog Data. Any and all enhancements or modifications, including the layout, look and feel or organization of the eCatalog Data, for purposes of providing eCatalog Services or Data Enhancement Services, is our Intellectual Property. Your limited, revocable, non-sublicensable, non-transferable right to use the eCatalog Services, Data Enhancement Services or eCatalog Data does not convey to you any rights or ownership in the eCatalog Services, Data Enhancement Services or eCatalog Data.
5. Acceptable Use of eCatalog Data. As part of the eCatalog Services, we allow you to cache eCatalog Data for a limited time to achieve your performance and service continuity. Client may cache the eCatalog Data for a maximum of 48 hours. Any retention or permanent storage or use of the eCatalog Data outside this 48 hour retention period is expressly prohibited. Upon termination of these Terms for any reason, Client will securely destroy any such eCatalog Data and provide a certification from a Client representative acknowledging the secure destruction of eCatalog Data within 5 business days.
6. Client Side Software. As part of the eCatalog Services or the Data Enhancement Services, we may provide you with software that is installed on your systems or devices (“Client-Side Software”). The Client-Side Software may only be installed at the specific locations identified in the Order Form. Upon full payment of the fees in the Order Form, and during the Term, we grant to you a non-exclusive, royalty-free, revocable, non-transferable, non-sublicensable license to (a) install the Client-Side Software on your systems at the specific location indicated in the Order Form; (b) copy, transmit, distribute, perform, and display the Client-Side Software solely as necessary to operate the Client-Side Software; and (c) copy, distribute, and publish the documentation solely as necessary to operate the Client-Side Software. In the case of (a)-(c), the rights are granted to you solely for your internal business operations in accordance with these Terms. The license granted in this Section 5 includes the right to: (i) install, execute, and run one copy of the Client-Side Software on your internal systems; (ii) generate print, copy, download, and store the data, information, and output that results from any execution or other use of the Client-Side Software; (iii) use the Client-Side Software solely in object code form; (iv) create one copy of the Client-Side Software and documentation for purposes of hardware or system maintenance or repair, system testing, disaster recovery, or backup and archiving. You are responsible for ensuring that the Client-Side Software and the data and information processed by the Client-Side Software is backed up. Following the payment of the fees we will make the Client-Side Software available to you for download. We will only be responsible for one complete installation in your internal systems. To access the Client-Side Software on more than one computer, you must purchase additional licenses, known as additional seats or working posts. In order to activate your license(s) to use the Client-Side Software and the accompanying documentation on one or multiple computers, you must obtain a valid license key from us or a reseller, distributor or manufacturer authorized by us. The Client-Side Software is our Intellectual Property. We offer the Client-Side Software “as is” and with all faults. Your sole remedy for any error or issue with respect to the Client-Side Software is the repair or replacement of the Client-Side Software. We will not be held liable for loss of data due to failure in any backup process. You will take all commercially reasonable measures to safeguard the Client-Side Software and the documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access.
7. Client-Side Software Maintenance. If you purchase Client-Side Software, in order for us to support the Client-Side Software, you must install and maintain the remote support software that we provide you. The remote support software must be installed on a device with access to the Client-Side Software and have Internet access. You are responsible for ensuring any data is backed up prior to providing us with remote access via the remote support software. We are not obligated to provide technical support if you do not back up the Client-Side Software or any data or information processed by the Client-Side Software. If any action or omission causes a non-standard support case, we will charge you our then-current professional service rate to resolve the non-standard case. Non-standard customer support cases include issues or resolutions related to third-party integrations, customer authored reports, and direct database read/write (including imports and exports) not authorized by us.
8. Internet Connectivity and Consent to Use Collected Data. You agree that we may collect and use technical and usage-based information gathered through your use of the Client-Side Software through our remote access to the software and you hereby agree to allow such remote access. We may use this information to support or improve our products, provide educational and consulting services and more broadly aggregate and analyze, provided this information will not be disclosed in such a way that it personally identifies you or any individual.
9. Project and Integration Support. You understand that you are responsible for configuring the eCatalog Services to connect using the specifications we provide.
10. API Integration. Certain eCatalog Services may allow you to integrate with APIs. You may conduct the API integration, or grant access to a third party to conduct the integration on your behalf. Upon your request, we will provide to you the information necessary to perform the API integration. You agree that you are solely responsible for such integration and that we are not responsible for any errors or deficiencies in the API integration performed by you or on your behalf. You agree that any third party that conducts such API Integration will execute a Confidentiality and Non-Disclosure Agreement with us prior to gaining access to any proprietary information.
11. Selling Goods and Merchandise Through Your Website. Some of the eCatalog Services allow you to sell products through your website and the eCatalog Services. You are solely responsible for all products that you sell, including all advertising, promotion, or any related services, and compliance with any laws related thereto. We are not involved in your relationship and/or transaction with any actual or potential buyer of your products. All payments for your products must be processed through a third-party payment provider with which you decide to contract, and in accordance with that third party’s terms of service and related policies or agreements. We are not a party to or responsible for your relationship with any third party payment providers, or for their actions. In addition to the Terms, you agree to the following:
12. Catalogue Management. If you sign up for a managed catalogue, we will provide updates from distributor catalogues throughout the year. Updates are done as soon as practical. Given the amount of products managed, updates may be delayed from a product release to its propagation in the eCatalog Service. We are not responsible for any errors and any errors found in the provided content must be reported to us to be fixed.
13. Unmanaged Catalogue. If you sign up for an unmanaged catalogue, we will only pull raw data from the files you provide to publish on any eCatalog Services. We will provide no other management services in association with such data provided by you and will have no responsibility or liability with regards to the accuracy of the raw data you provide or how the raw data is displayed through any eCatalog Services.
14. American Honda Motor Co. Electronic Parts Catalog. If you request access to electronic parts catalog data published on behalf of American Honda Motor Co., Inc. (“AHM”), you also agree to the following (note, the remaining paragraphs do not apply if you are not requesting access to the AHM electronic parts catalog):
You also acknowledge and agree that:
1. Data Services. Data Services may include Third Party Data, in the form of digitized original automobile window stickers.
2. Acceptable Use. You may only use the Data Services and Third Party Data to provide to consumers in connection with the sales and advertising of vehicles and to enhance vehicle data, either by including the Third Party Data on a website to describe a vehicle or as a window sticker on a vehicle. You may not sell, distribute, or alter the Third Party Data or Data Services.
3. Warranty Disclaimer. THE DATA SERVICES ARE LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. We do not warrant that the Data Services will meet your requirements, that operation will be uninterrupted or error free, or that the Third Party Data will contain correct, accurate, or complete data.
Messaging and Email Services
1. Messaging Services. For purposes of these Service Specific Terms, “Messaging Services” means any message sent via SMS, MMS, Chat, and WhatsApp messaging channels in connection with the Services indicated in an Order Form.
2. Email Services. For purposes of these Service Specific Terms, “Email Services” means any email sent via the Services indicated in an Order Form.
3. Third Party Services. We use third-party services in order to provide Messaging Services and Email Services. If the Order indicates that you purchased Messaging Services or Email Services, the following terms apply to such purchase:
Note: The euro symbol (€) is not supported; avoid using this character in message submission toward the United States.
Individuals must have the ability to revoke consent to receive further non-legally required notices at any time. When an individual opts out, you must honor the request within 10 days or the timeframe required by the applicable law or regulation, whichever is shortest. An individual must provide opt-in consent before you can send any additional emails.
This is a legal agreement for the early access or evaluation use of pre-release feature or functionality capabilities between the company acquiring the license (“Evaluator”), and us, the entity identified in writing as the provider of services (referred to as “Provider”, “we,” “us” or “our” and Evaluator may also be referred to in these Terms as “you” or “your”). This Agreement applies in the event Evaluator is not an existing customer with an existing terms of service contract with Provider.
If you are using the pre-release features as an employee, the legal entity that employs you is the “Evaluator.” Your employer may have already accepted a version of these terms and conditions by signing a service agreement. In all other circumstances, you are binding your employer and yourself as an employee, to this Agreement by accessing the pre-release capabilities. Unless Evaluator and Provider have signed a license or service agreement for the Service, this Addendum and any applicable Order Form contain the parties’ entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements. IF YOU DO NOT, OR THE EVALUATOR DOES NOT, AGREE TO THESE TERMS AND CONDITIONS, IMMEDIATELY NOTIFY US.
Effective as of the date Evaluator confirms acceptance of these terms to Provider, the parties agree as follows: