Outsell Connect for Reynolds & Reynolds DMS

These Terms and Conditions (the “Agreement”) are between Outsell, LLC (“Outsell”) and the dealer subscribing to Outsell Connect for Reynolds & Reynolds (the “Service”) (“you”). The Service may also be made available to you through an agency or association authorized by Outsell, but regardless of whether you obtain the Service through an intermediary or directly from Outsell, this Agreement will govern and Outsell is an intended beneficiary thereof.

As part of its Reynolds Certified Interface program, your dealer management system (“DMS”) provider the Reynolds & Reynolds Company or its affiliates (collectively “Reynolds”) has developed certain processes that allow Outsell to receive from Reynolds transactional data from your DMS. This may include financial, vehicle, or personally-identifiable information (“PII”) on consumers who have conducted business at your dealership (the “Consumers”). The Service uses this integration to extract data on the Consumers from your DMS through secured protocols, certified by Reynolds.

For the avoidance of doubt, you must obtain a separate license to the Outsell Fuel Platform from Outsell, or through an agency or associate authorized by Outsell, to use the Service.

You must accept this Agreement and the Outsell Fuel Platform End User License Agreement (“the EULA”) to use the Service. Your use of the Service constitutes acceptance by you of this Agreement. If you do not agree to this Agreement, no license is granted to you and you are prohibited from using the Service.

By agreeing to these terms, you are providing your consent to Reynolds providing Outsell with access to data from your DMS, which may include, without limitation, non-public information regarding your Consumers. By agreeing to these terms you represent and agree that: (a) Reynolds makes no representations, assurances, warranties or guarantees with respect to using the Outsell Connect with Reynolds’ processes or Outsell’s obtaining access to data from your DMS; (b) Outsell makes no representations, assurances, warranties or guarantees with respect to your DMS or Reynolds obtaining access to data from Outsell; (c) Reynolds shall have no liability whatsoever for any damages you may suffer as a result of using Outsell Connect with Reynolds’ processes or because of Outsell’s access to data from your DMS; (d) Outsell shall have no liability whatsoever for any damages you may suffer as a result of using your DMS or because of Reynolds’ access to data from Outsell; (e) Reynolds has no responsibility for the activities of Outsell with respect to its access to data from your DMS, including without limitation, with respect to non-public information regarding your Consumers obtained or used by Outsell; (f) Outsell has no responsibility for the activities of Reynolds with respect to its access to data from Outsell, including without limitation, with respect to non-public information regarding your Consumers obtained or used by Reynolds; (g) Reynolds may terminate the integration described in this Agreement at any time if it determines that such integration may conflict with or adversely affect the operation or security of your DMS (including without limitation the integrity or security of the data) or such access may violate any applicable laws or regulations; (h) Outsell may terminate the integration described in this Agreement at any time if it determines that such integration may conflict with or adversely affect the operation or security of your the Outsell Fuel Platform or the Service(including The without limitation the integrity or security of the data) or such access may violate any applicable laws or regulations; (i) problems caused by the data access described in this Agreement will not be covered by any software support and equipment maintenance services or fees previously agreed between you and Reynolds or between you and Outsell; and (j) Reynolds has the right to enforce its rights under this Agreement. NOTICE TO NORTH CAROLINA DEALERS: THIS END USER AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.

  1. License. Subject to this Agreement and your payment obligations, Outsell grants to you a limited, non-exclusive, non-transferable license to use the Service as made available to you in connection with your purchase (or trial) of the Service provided by Outsell, or through an agency or association authorized by Outsell, solely for your internal business purposes and only by you and your principals, dealership staff and/or marketing agents to whom you provide access to the Service (“Authorized Users”) pursuant to this Agreement, whether directly accessed through the Outsell Fuel Platform or indirectly through the Service or the DMS. For clarity, Reynolds’ processes may only be used with the Services. You may only use the Services (in whole and in part) for its intended purpose. You shall not disclose any passwords or other security information that are related to the Service. You agree that each Authorized User shall be bound by this Agreement and you are responsible for all actions and inactions by Authorized Users with respect to the Service, including any breach of this Agreement by an Authorized User.
  2. Ownership. You acknowledge that the Service is licensed, and not sold, to you. No ownership rights are granted to you or may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights, including all intellectual property rights, not expressly granted to you are reserved by Outsell or its licensor(s). You may not copy, disassemble, decompile, modify, reverse engineer, rent, lease, loan, lend, sublicense, pledge, transfer, permit access to, outsource, sell, or distribute the Service (either in whole or in part)or create derivative works based on the Service (either in whole or in part), except as provided in this Agreement. You further acknowledge that the Service may contain information which is designated confidential, and you agree not to make any public disclosure of any kind whatsoever of such confidential information without Outsell’s prior written consent.

The Service contains portions of program code owned by third party licensors. ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event will any licensor be liable for indirect, incidental, consequential or exemplary damages arising from use, or inability to use the Services (either in whole or in part), even if they knew of the possibility of such damages.

  1. DMS Entries. You are solely responsible for maintaining and populating information on the Consumers in your DMS, and you acknowledge that you are responsible for the accuracy and completeness of DMS records that may be extracted through the Service.
  2. Consumer Information. You ensure that the Consumers’ privacy, PII, and proprietary information are protected in a manner consistent with industry best practices, all applicable laws, and consumer privacy regulations. You warrant that for purposes of the data or information that may be accessed by Outsell or the Services pursuant to this Agreement you have provided any required privacy notices as required by applicable laws, including the Gramm-Leach-Bliley Act and its implementing regulations (“GLBA”). Further, you grant to Outsell and its partners and advisors, including your DMS provider, all such rights and permissions in data or information, including nonpublic information, names and financial information, relating to the Consumers as may be necessary or useful to perform the Service, and Outsell and its partners and advisors can provide access to such data and information to each other for that purpose. In the event the performance of the Service requires Outsell or its partners and advisors to access your computer systems to collect data or information or perform the Service, you grant and authorize Outsell and its partners and advisors such access.

Outsell will not access, store, share, disclose or use any nonpublic personal information of any Consumer obtained pursuant to this Agreement other than as necessary to perform the Services or as otherwise required by law. Outsell will implement and maintain appropriate safeguards to protect nonpublic personal information of any Consumer that Outsell obtains pursuant to this Agreement for so long as Outsell has access to any such information. Outsell will provide prompt notice to you in the event known or reasonably suspected privacy or security breaches. Outsell will return or destroy any nonpublic personal information of any Consumer upon the termination or expiration of this Agreement.

  1. Service Failure. If any portion of the Service fails to operate, it is your responsibility to immediately notify Outsell of such failure.
  2. Right to Modify Service. Outsell reserves the right to modify, suspend, impose limits on certain features of the Service, restrict access to parts of the Service, or temporarily or permanently discontinue the Service or any portion thereof at any time, including the availability of any functionality of the Service, for any reason or no reason. If Outsell makes changes or discontinues the Service, you understand and acknowledge that you may no longer be able to use the Service to the same extent or in the same manner in which you used them prior to such change or discontinuation, and that Outsell shall have no liability to you with respect to such changes or discontinuance. Notwithstanding the foregoing, if Outsell makes changes to the Services that materially and adversely affect your ability to use and enjoy the Service, as your sole and exclusive remedy, you may terminate this Agreement and your subscription, and Outsell will refund any unused and prepaid fees for Service.
  3. Fees. You agree to pay the fees for the Service, if any, in the amounts set forth in the registration process or, if an order form was used, on the order form. Except as provided under Section 6 (Right to Modify Service), all fees stated hereunder are nonrefundable. All fees stated hereunder are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. You assume exclusive liability for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Service.
  4. Audit. On Outsell’s written request, you shall conduct a review of your use the Service and certify to Outsell in a written instrument that you are in full compliance with this Agreement and all applicable laws.
  5. Suspension of Service. Outsell may immediately, directly or indirectly, suspend or otherwise deny your access or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Outsell receives a judicial or other governmental demand or order; (b) Outsell believes, in its sole discretion, that you: (i) have failed to comply with any term of this Agreement (including a failure to make any payment when due) or the EULA; (ii) have accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (iii) have been, or are likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Service; or (c) this Agreement expires or is terminated.
  6. Term/Termination. The effective date of this Agreement shall be the first day on which you access the Service and will remain in effect until terminated, or if applicable, until the expiration of your subscription whichever is earlier. Outsell may terminate this Agreement: (a) effective on 10 days’ written notice for any reason or no reason; (b) effective on 5 days’ written notice if you breach this Agreement (including a failure to make any payment when due) or the EULA and fail to cure such breach during the notice period; or (c) effective immediately upon written notice if you become insolvent, enter bankruptcy, or are generally unable to pay, or fail to pay your debts as they become due. You may terminate this Agreement: (a) effective on 60 days’ prior written notice to Outsell for any reason or no reason; or (b) effective on 30 days’ prior written notice in the event Outsell materially breaches any privacy laws or regulations and fails to cure such breach during the notice period. Your obligations cannot be materially modified or terminated without the written consent of such third party licensors. Notwithstanding anything to the contrary, all rights, licenses, consents and authorizations granted by Outsell to you under Section 1 (License) automatically terminate if you breach any material provision of this Agreement. Further, upon any expiration or termination of this Agreement, all rights, licenses, consents and authorizations granted by Outsell to you hereunder will immediately terminate.
  7. Representations and Warranties. You represent and warrant that: (a) you are duly organized, validly existing and in good standing; (b) you have the full right, power and authority to enter into and perform the obligations and grant the rights, licenses, consents and authorizations granted or required to grant under this Agreement, including without limitation, the necessary rights, power, authority and consents in and relating to the Consumers’ information and data so that, as received by Outsell, it does not and will not infringe, misappropriate or otherwise violate any intellectual property or privacy rights, or violate any other applicable law; (c) this Agreement will constitute the legal, valid and binding obligation, and enforceable against you; and (d) this Agreement does not violate or conflict with any applicable law or regulation or agreement between you and any third party (including the CRM).
  8. Limitation of Liability. IN NO EVENT SHALL OUTSELL BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE. IN NO EVENT SHALL OUTSELL BE LIABLE FOR THE ALTERNATION, DESTRUCTION, DAMAGE, CORRUPTION, RECOVERY, MISAPPROPRIATION OR UNAUTHORIZED ACCESS TO OR MODIFICATION OF END USER DATA, OR FOR MISTAKES, OMISSIONS, OR DELAYS IN TRANSMISSION OF INFORMATION, OR FOR INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SERVICE, VIRUSES OR FAILURES OF PERFORMANCE, OR FOR THE IMPACT OF THE SYSTEM ON ANY SYSTEM, EVEN IF OUTSELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. IN NO EVENT SHALL OUTSELL’S TOTAL LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF ANY LICENSE FEE PAID BY YOU TO OUTSELL FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL OUTSELL BE LIABLE IN ANY WAY FOR THE ACTS OR OMISSIONS OF THE CRM, THE OPERATION OF THE CRM, OR ANY FEES RELATED THERETO. The foregoing limitations shall apply even if the remedy fails of its essential purpose. Because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not apply to you.
  9. Warranty Disclaimer. ALL SERVICE ARE PROVIDED “AS IS” AND OUTSELL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OUTSELL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE (INCLUDING THE CRM), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS (INCLUDING THE CRM) ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. FOR THE AVOIDANCE OF DOUBT, OUTSELL IS NOT RESPONSIBLE FOR ANY FEES OR CHARGES FROM SUCH THIRD-PARTY.
  10. Indemnification. You shall indemnify, defend and hold harmless Outsell and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an “Outsell Indemnitee“) from and against any and all losses incurred by such Outsell Indemnitee in connection with any action arising out of or relating to: (a) Consumer data and information; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by you or on your behalf to an Outsell Indemnitee; (c) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants or obligations under this Agreement or violation of any applicable law; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by you or on your behalf, in connection with this Agreement.
  11. Third-Party Beneficiaries. You understand, acknowledge, and agree that Outsell and its partners and sub-contractors who provide services as part of this Agreement, and third party licensors that own portions of program code in the Services (collectively, “Third-Party Beneficiaries”), are third-party beneficiaries of this Agreement. To the extent it relates to the Services, Third-Party Beneficiaries have the right to take advantage of or enforce any term or condition herein, including, without limitation, Section 4 (Consumer Information), Section 6 (Right to Modify Services), and Section 10 (Suspension of Service).
  12. Miscellaneous. You shall not assign or otherwise transfer any of your rights or obligations under this Agreement without Outsell’s prior written consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. 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. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Agreement. Any right or obligation in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any such expiration or termination. Each party shall be excused from performance hereunder, except for payment obligations, to the extent that it is prevented from performing any obligation, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control. The parties are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created between you and Outsell. Any notice to be provided under this Agreement shall be in writing and shall be delivered to the last known address of the party to receive the notice, which shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, facsimile, prepaid courier, express mail or personal delivery. This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter. This Agreement shall be governed by the laws of the State of Minnesota without regard to its conflict of laws provisions. The parties agree to submit to the exclusive jurisdiction of the courts located within Minnesota to resolve any legal matter arising from the Agreement.

YOU (AS AN INDIVIDUAL) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE DEALER SUBSCRIBING TO THE SERVICES AND ALL AUTHORIZED USERS, AND SUCH DEALER AND ALL AUTHORIZED USERS CONSENT TO ABIDE BY ALL OF THE TERMS OF THIS AGREEMENT.

The Reynolds and Reynolds Company – Confidential Outsell RIA – May 16, 2016