TERM OF USE
1.2 We reserve the right, at our sole discretion, to change or modify portions of this Agreement at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Services or Hardware after the date any such changes become effective constitutes your acceptance of the new Agreement.
2 Description of Service
The “Service” includes (a) all mobile applications and other software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing; (b) Dealer’s vehicle information and related services; and (c) any other specialty services offered to users [(b) and (c) are collectively referred to as the “Content”]. The “Hardware” means any optional hardware or equipment provided in connection with the Service. Any updates or new features added to or augmenting the Service or the Hardware are also subject to this Agreement; to keep the Software current, you agree that we may automatically provide you with such updates without your further consent or notice to you. NOTE THAT IN ORDER FOR THE HARDWARE TO FUNCTION PROPERLY, IT MUST BE PROPERLY INSTALLED IN YOUR VEHICLE. THE MOBILE DEVICE MUST HAVE ADEQUATE NETWORK AND DATA SERVICE IN THE LOCATION WHERE NEEDED.
- General Conditions Relating to Access and Use of the Service and Hardware
3.1 Subject to the terms and conditions of this Agreement, you may access and use the Service and Hardware only for lawful purposes. You shall not use the Services or Hardware (and we will not be liable for your use of the Services and Hardware) in connection with cars of any make, model or year that we do not support. All rights, title and interest in and to the Service, the Hardware and their components will remain with and belong exclusively to Dealer. You shall not: (a) sublicense, resell, rent, lease, transfer, assign, time-share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service or the Hardware in any unlawful manner (including, without limitation, in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service, the Hardware or their components, (c) modify, adapt or hack the Service or the Hardware or otherwise attempt to gain unauthorized access to the Service, the Hardware or their related systems or networks, or (d) use the Service or Hardware to obtain or attempt to access any materials or information through any means not intentionally made available or provided through the Service or Hardware. You shall comply with any codes of conduct, policies or other notices Dealer provides you or publishes in connection with the Service and the Hardware, and you shall promptly notify Dealer if you learn of a security breach related to the Service. YOUR SAFETY IS IMPORTANT TO US. Do not use the Service in a way that distracts you and/or prevents you from obeying traffic or safety laws. you should wait until you can pull over safely and stop the car before accessing the service.
3.2 Any software that may be made available by Dealer in connection with the Service, such as Dealer’s mobile application and any software embedded on the Hardware (collectively, “Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, Dealer hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with the Service (and in the case of Software embedded on the Hardware, you may only use such Software on the Hardware), provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Dealer for use in accessing the Service or other approved interface. The Dealer name and logos are trademarks and service marks of Dealer (collectively the “Dealer Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Dealer. Nothing in this Agreement or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Dealer Trademarks displayed on the Services, without our prior written permission in each instance. Any rights not expressly granted herein by Dealer are reserved and no license or right to use any trademark of Dealer or any third party is granted to you in connection with the Service or Hardware. Software, Hardware and the transmission of applicable data, if any, is subject to United States export controls.
3.4 Dealer uses reasonable security measures to protect the data we receive via the Services and Hardware. However, we cannot guarantee that third parties will never defeat our security measures. You acknowledge that you are using the Services and Hardware and sharing information at your own risk.
3.5 The Service includes certain services that are available via a mobile device, including (i) the ability to upload data to the Service via a mobile device, (ii) the ability to browse the Service from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Dealer and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Dealer account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Dealer account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages which may not be delivered or may be sent to the person that acquires your old number.
3.6 You agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
3.7 The failure of Dealer to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. You acknowledge that this Agreement is a contract between you and Dealer, even though it is electronic and is not physically signed by you and Dealer, and it governs your use of the Service and Hardware and takes the place of any prior agreements between you and Dealer related to the subject matter herein.
To the extent the Service, Hardware or any portion thereof is made available for any fee, you may be required to select a payment plan or make a payment and provide Dealer information regarding your credit card or other payment instrument. You represent and warrant to Dealer that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Dealer the amount that is specified in the payment plan in accordance with the terms of such plan and this Agreement. If your payment plan involves subscription payments, you hereby authorize Dealer to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Dealer know within sixty (60) days after the date that Dealer charges you. Dealer reserves the right to change prices upon written notice to you.
- Representations and Warranties
You represent and warrant to Dealer that: (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in data collection using the Hardware, posting and other activities (and allow Dealer to perform its obligations) in connection with the Service and Hardware without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service and Dealer’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
Dealer reserves the right to (i) modify or discontinue, temporarily or permanently, the Service or Hardware (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any of Your Content in the Service for any reason, including if Dealer believes that you have violated this Agreement. Dealer shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service or Hardware. Dealer will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Dealer. All of Your Content on the Service (if any) may be permanently deleted by Dealer, in its sole discretion, upon any termination of your account. If Dealer terminates your account without cause and you have signed up for a fee-bearing service, Dealer will refund the pro-rated, unearned portion of any amount that you have prepaid to Dealer for such Service.
- DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING THE CONTENT AND ANY DATA OR OTHER INFORMATION PROVIDED BY THE HARDWARE, SOFTWARE OR SERVICE, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND DEALER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS OR RELIABILITY. DEALER MAKES NO WARRANTY THAT (I) THE SERVICE OR HARDWARE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE OR HARDWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE, (III) THE RESULTS (SUCH AS VEHICLE ERROR CODE ANALYSIS) THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR HARDWARE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM DEALER OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU ARE SOLELY RESPONSIBLE FOR SAFE VEHICLE OPERATION AND PROPER VEHICLE MAINTENANCE AND YOU SHOULD ALWAYS OBTAIN PROFESSIONAL ASSISTANCE FROM A VEHICLE SPECIALIST FOR DIAGNOSIS AND REPAIR OF ANY ERRORS OR OTHER PROBLEMS WITH YOUR VEHICLE. DEALER DOES NOT GUARANTEE THAT THE SERVICE OR THE HARDWARE IS AVAILABLE OR APPROPRIATE FOR USE OUTSIDE OF THE UNITED STATES and SHALL NOT BE LIABLE FOR ANY USE OUTSIDE OF THE UNITED STATES. If you choose to access the service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
- LIMITATION OF LIABILITY
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL DEALER OR ANY THRID PARTY SUPPLIERS OR LICENSORS ACTING ON BEHALF OF DEALER BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, (B) ANY INJURIES TO PERSONS OR DAMAGE TO PROPERTY RELATED TO YOUR USE OF THE SERVICE OR HARDWARE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF THE HARDWARE, OR (C) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE SERVICE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO SERVICE FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. The foregoing limitations will apply even if any warranty or remedy provided under this AGREEMENT fails of its essential purpose.
8.2 SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, DEALER’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Dealer and all third party suppliers or licensors acting on Dealer’s behalf from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any of Your Content, or your access, contribution to, use or misuse of the Service or Hardware. Dealer shall provide notice to you of any such claim, suit or demand. Dealer reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Dealer’s defense of such matter.
You may not assign this Agreement without the prior written consent of Dealer, but Dealer may assign or transfer this Agreement, in whole or in part, without restriction.
- Governing Law
This Agreement shall be governed by the laws of the State of Delaware without regard to the principles of conflicts of law.
- Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. You and we each agree to resolve any disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, Dealer will pay reasonable attorneys’ fees should you prevail. Dealer will not seek attorneys’ fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys’ fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
12.1 Arbitration Agreement: We and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
claims that may arise after the termination of this Agreement.
References to “Dealer”, “we”, and “us” include us and any third party licensors and suppliers acting on our behalf and our and their respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns and references to “you” includes all authorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Dealer are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Dealer should be sent to the address located in Section 16 of this Agreement (“Notice Address”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Dealer and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or Dealer may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Dealer or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Dealer is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless Dealer and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Dealer will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND DEALER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Dealer agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
12.2 Notwithstanding any provision in this Agreement to the contrary, you agree that if Dealer makes any future change to this arbitration provision (other than a change to an address or phone number) while you are a user of the Service or Hardware, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided herein. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
- Notice for California Users
Under California Civil Code Section 1789.3, users of the Hardware from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- No Modifications of Agreement
No Dealer employee, agent or reseller is authorized to make any verbal or written modification, extension or addition to this Agreement, and Dealer expressly disclaims any such change. If any portion of this Agreement is found to be void or unenforceable, its remaining provisions shall remain in full force and effect.
- NOTICE ADDRESS
You may contact us at <Name, address, phone number> (“Notice Address”).