Standard Terms of Service and License You (“You” or “End User”) are receiving access to proprietary software applications and services that comprise the customer engagement solution (collectively the “System”) from Outsell Corporation (“Licensor”), either directly or through one of Licensor’s authorized partnering agencies or associations, subject to the following Standard Terms of Service and License (“Agreement”). BY YOUR ACCESS TO THE SYSTEM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A DEALERSHIP OR OTHER LEGAL ENTITY (“COMPANY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND, AND HEREBY BIND, SUCH COMPANY AND ALL OF ITS INDIVIDUAL USERS TO THESE TERMS AND CONDITIONS. IN THE FOREGOING CASE, THE TERMS “END USER,” “YOU” OR “YOUR” SHALL ALSO REFER TO YOUR COMPANY AND ALL OF ITS INDIVIDUAL USERS OF THE SYSTEM.

1. License Grant and Restrictions. Subject to the terms and conditions of this Agreement, Licensor grants to you a limited, non-exclusive, non-transferable license to use the System as made available to you in connection with your purchase (or trial) of certain services provided by Licensor (whether purchased from Licensor or through an agency or association authorized by Licensor), solely for your internal business purposes and only by You and Your Company’s principles, dealership staff and/or marketing agent to whom You provide access to the System (“Authorized Users”) pursuant to the terms of this Agreement. You agree that each Authorized User shall be bound by this Agreement.

1.1 You are responsible for maintaining the security of your login information including all usernames and passwords for your access to the System and for any damage caused by unauthorized access to the System or to data within the System through your user account(s). You are authorized to access and use the System via compatible web browsers operating on compatible computer systems residing at your locations, accessed through your own Internet Service Provider, all in an appropriate, careful and proper manner and in compliance with all user manuals, laws and regulations. Your computer systems must be selected, maintained, and controlled solely by you.

1.2 You shall not:

(i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the System or any portion or content thereof in any way;

(ii) modify or make derivative works based upon the System or its content;

(iii) “frame” or “mirror” any content on any other server or wireless or internet-based device;

(iv) import or export the System or any portion thereof in violation of United States or other applicable import or export law;

(v) reverse engineer or access the System or any portion thereof in order to

  1. build a competitive product or service,
  2. build a product using similar ideas, features, functions or graphics, or
  3. copy any ideas, features, functions or graphics of the System;

(vi) use the System to provide consulting or other services to third parties; or (vii) delete any copyright, trademark, patent or other notices of proprietary rights of Licensor as they appear anywhere in or on the System.

1.3 You shall not:

(i) use the System to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

(ii) interfere with or disrupt the integrity or performance of the System or the data contained therein; or

(iii) attempt to gain unauthorized access to the System or related systems or networks. You may not access the System if you are a direct competitor of Licensor, except with Licensor’s prior written consent. In addition, you may not access the System for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

2. Proprietary Rights. As between Licensor and you, Licensor has all rights, title, interest, ownership and proprietary rights in and to the System and all associated technology, processes, know-how, instructions, training materials, documentation, and all improvements and enhancements thereto. Licensor’ rights include, but are not limited to, the System and any patent rights (including but not limited to patent applications and disclosures), copyrights, trademark rights, trade secret rights, and any other intellectual property right recognized in any country or jurisdiction in the world, as well as the content and related services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the System. The System is protected both by United States law and international treaty provisions. The System may include third party products. Please read our accompanying documentation help files for further information. By using the System, you represent and warrant that you have complied and will continue to comply with the terms of use of any third party products that are covered by the System.

3. Payment Terms. You shall be responsible for paying the fees associated with the use of the System in accordance with the applicable agreements between you and Licensor or between you and Licensor’s respective authorized agency or association. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorney fees, court costs and collection agency fees. Your access to any portion of the System or related application may be suspended if you have not made timely payment for access. Licensor reserves the right to impose a fee for restoration of any suspended accounts. You are solely responsible for the payment of any sales taxes, fees, tariffs or other such levies resulting from your access to, or use of, the System.

4. Security. Licensor will use commercially reasonable best efforts to maintain physical and technical security procedures for the System provided however that Licensor is not responsible for any acts of Third-parties and cannot warrant that the Services will be completely secure from interference or disruption by factors outside Licensor’s control.

5. Your Responsibilities for Infrastructure and End User Data.

5.1 Infrastructure. You agree to maintain your computers, and to ensure the presence and continued operation of the web browsers, network infrastructure and internet service necessary to access the System. You also agree to comply with any requirements regarding use of the System, including hardware and connectively requirements, set forth in Licensor’s standard policies and any documentation accompanying the System. If any portion of the System fails to operate, it is your responsibility to immediately notify Licensor of such failure.

5.2 End User Data Responsibilities. During the term of this Agreement, you may enter certain data including but not limited to customer lists and e-mail lists (“End User Data”) into the System. You are responsible for managing and maintaining your End User Data and complying with the following requirements:

(i) Program Contact. You are responsible for maintaining and updating contact lists for all program communications and providing prompt notice of any changes to the lists to the program administrator.

(ii) Customer Contacts. You are responsible for

  1. maintaining and updating customer contact lists and ‘unsubscribe’ lists and ensuring that you only enter and/or provide data that has been ‘scrubbed’ to remove information for recipients who have unsubscribed or opted-out from receiving marketing messages;
  2. ensuring that no rented or purchased e-mail or mobile prospects are included in your End User Data; and
  3. providing updated customer contact lists to the program administrator.

(iii) Links. You are responsible for testing and verifying all links directed to your website and updating such links as needed (as may be used in your newsletter and campaigns) with notice to the program administrator.

(iv) Live Chat Administration. If you have licensed the Live Chat Administration service, your license for this service is limited to use by the number of licensed Authorized Users and solely with the individual website indicated in your agreement to purchase such services. You are not allowed to copy chat code to any other websites and will be billed (at then current rates) for any additional unauthorized chat buttons. Additional chat buttons can be purchased by contacting the program administrator. You are responsible for

  1. placing and maintaining the Live Chat button on your web server provider; and
  2. maintaining (keeping current) and updating all routing contacts for live chat transcripts and CRM routing systems, and
  3. cancellation of Live Chat button on your website when applicable.

(v) Content and Customization. You are responsible for customizing and maintaining quality control (e.g. proofreading for grammar and images) of your content and ensuring that all content, including but not limited to newsletter copy, links, images, product information, and campaign offers meet your requirements and are in compliance with applicable program rules. You acknowledge that you have all necessary ownership or license rights to content that you use or provide in using the System. In the event that you do not meet any of the above requirements, Licensor may, at its option, remove any non-compliant End User Data and/or terminate this Agreement.

6. Confidentiality. Your End User Data is owned by you and shall be considered Your “Confidential Information.” Information you access or receive pursuant to this Agreement, including but not limited to information about the System and/or Licensor services is Licensor’s “Confidential Information.” Each party agrees to take reasonable steps to protect the other party’s Confidential Information, including not disclosing it to third parties except as otherwise permitted by this Agreement or required by law. Confidential Information does not include any information that a party receiving information (a “Receiving Party”) can demonstrate by written records:

(i) was known to the Receiving Party prior to its disclosure hereunder by the disclosing party (“Disclosing Party”);

(ii) was independently developed by the Receiving Party;

(iii) is or becomes publicly known through no wrongful act of the Receiving Party;

(iv) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction;

(v) has been de-identified to remove individually-identifiable information; or

(vi) has been approved for public release by the Disclosing Party’s prior written authorization. Confidential Information may be disclosed pursuant to applicable law, regulations or court order, provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek protective order or otherwise prevent such disclosure.

7. Consent to Use of End User Data. Licensor uses aggregated de-identified data in its business operations. You acknowledge and agree that Licensor may collect and use de-identified data as well as technical data about your computer, device, software and/or peripherals, which may be gathered periodically for its business operations and/or to facilitate updates and other services to you.

8. NO WARRANTY. THE SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SYSTEM WILL MEET YOUR REQUIREMENTS, OPERATE IN COMBINATION WITH OTHER SOFTWARE, OR BE UNINTERRUPTED OR ERROR-FREE.

9. Indemnity. You agree to indemnify and hold Licensor and its officers, agents, employees, partnering agencies and/or associations harmless from any claim or demand or fines or fees, including reasonable attorneys’ fees, due to or arising out of your breach of this Agreement or violation of any applicable laws.

10. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR 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 SYSTEM, INCLUDING LOSSES RESULTING FROM LOSS, MISAPPROPRIATION OR UNAUTHORIZED ACCESS TO OR MODIFICATION OF END USER DATA, OR FROM MISTAKES, OMISSIONS, OR DELAYS IN TRANSMISSION OF INFORMATION, OR FROM INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SYSTEM, VIRUSES OR FAILURES OF PERFORMANCE, OR FROM THE IMPACT OF THE SYSTEM ON ANY SYSTEM, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF ANY LICENSE FEE PAID BY YOU TO LICENSOR FOR THE SYSTEM. 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. Licensor reserves the right to deliver a modified version of the System, or alternate product that has comparable features, at any time, and you agree to accept such modified or alternate product.

11. Security. Violations of system and network security are prohibited, and may result in criminal and civil liability. Licensor will investigate incidents involving such violations and may involve and will report any suspected criminal activity to and cooperate with law enforcement. Examples of system and network security violations include the following: unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization; unauthorized monitoring of data or traffic on any network or system without express authorization; interference with service to any user; falsifying a user identity or providing other false information to Licensor in connection with the use of the System or any Licensor application; or taking any other action to disrupt the normal use of the System.

12. Term/Termination. The effective date of this Agreement shall be the first day on which you access the System and will remain in effect until terminated, or if applicable, until the expiration of your subscription whichever is earlier. Licensor may terminate this Agreement immediately if you fail to comply with any provision of this Agreement. If service continues after expiration of the initial term of a subscription or trial, Licensor may, upon thirty (30) days written notice, adjust the rates for your use of the System to the then current rates.

13. Compliance with Laws. You agree to comply fully with all relevant export laws, regulations, treaties, and orders (“Export Laws”) to assure that neither the System nor any components thereof are

(i) exported, directly or indirectly, in violation of Export Laws; or

(ii) are intended to be used or are used for any purposes prohibited by the Export Laws. Furthermore, You are responsible for ensuring that all of your activities and marketing activities, that may or may not employ use of the System, are fully compliant with all applicable laws and regulations including but not limited to complying with the CAN-SPAM Act of 2003, as may be amended. In addition, it is your responsibility to determine the local and state advertising regulations that may apply in each jurisdiction where you conduct activities and selecting and using services and tailoring advertising and marketing accordingly.

14. General. From time to time, this Agreement may be updated and posted by Licensor. By accessing and using the System, you agree to be bound by the terms of the most recent version of this Agreement made available to you. This Agreement supersedes any prior version of this agreement between you and Licensor with respect to your use of the System and to the extent of any conflict between this Agreement and any purchase order or other agreement with respect to Your use of (and Your rights to use) the System, this Agreement shall govern. With the exception of the foregoing, no amendment, modification or waiver of any provision hereof will be binding unless set forth in a written document signed by the parties or otherwise expressly agreed to by the parties (in the case of amendments or modifications) or by the party to be charged thereby (in the case of waivers). In the event that any provision contained herein is held to be invalid or unenforceable, all other provisions of this Agreement shall be deemed severable and shall remain enforceable to the full extent permitted by law. In the event that any provision of this Agreement is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and shall be enforced as amended. You may not assign this Agreement (in whole or in part) without Licensor’s prior written consent, and any attempt to do so without that consent will be null and void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement shall be construed and interpreted under and in accordance with the substantive laws of the State of Minnesota, USA (exclusive of the choice of law rules thereof). The Minnesota federal courts and/or the state courts located in Hennepin County, Minnesota, shall have exclusive personal and subject matter jurisdiction over, and all the parties shall each submit to the venue of such courts with respect to, any dispute pursuant to this Agreement, and all objections to such jurisdiction and venue are hereby waived. Should you have any questions concerning the System or this Agreement, contact Outsell Corporation at 225 South Sixth Street, Suite 3200 Minneapolis, MN Dealerservices@outsell.com 877-500-7598.