MASTER SERVICES AGREEMENT (“Agreement”) made and entered into this (“Effective Date”), by and between Vehicle Acquisition Network, Inc. (“Provider”), located at 220 North Green Street, Chicago Illinois 60607 and the customer whose information appears on the Order Form (“Order Form”) entered into with this Agreement (“Subscriber”).
1. Description of the Service.
(a) Scope. Subject to the terms and conditions of this Agreement, Provider shall provide Subscriber and Subscriber’s authorized employees or agents whom Subscriber has identified to Provider (“Authorized Users”) with access to Provider’s proprietary, online platform comprised of computer software and software tools and communications tools (“Software”), databases and APIs (collectively the “Service”). Subscriber may request additional services in an Order Form.
(b) Software Services. As part of the Service, Authorized Users have access to Provider’s proprietary, curated, database of for-sale-by-owner marketplace data (“Marketplace Data”), Communication Tools (detailed below), CRM platform and tools (“CRM Platform”), and Performance Management Team. Provider reserves the right to alter, delete or replace Marketplace Data or alter the functionality of Software for purposes of keeping the Marketplace Data and Software up-to-date and functioning properly. Service descriptions may be amended from time to time without notice to Subscriber or its Authorized Users.
(d) The CRM Platform is Provider’s proprietary CRM application that enables Authorized Users to track activities and organize opportunities, schedule tasks and view reports using a dashboard.
(e) Performance Management Team is Provider’s proprietary service that provides coaching, training, support and best practices guidelines for Subscribers using the Service.
(f) Subscriber agrees to provide true, accurate, current and complete information. If Subscriber provides any information that is untrue, inaccurate, not current, incomplete, false or misleading, or Provider has reasonable grounds to suspect that such information is untrue, inaccurate, not current, incomplete, false or misleading, Provider has the right to suspend or terminate the Service and refuse any and all current or future use of the Service (or any portion thereof). Please note that standard messaging and data rates may apply, depending on Subscriber’s cellular plan. Provider reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) upon notice. Subscriber agrees that Provider shall not be liable to Subscriber or to any third party for any modification, suspension or discontinuance of the Service.
2. Limited License; Restrictions on Use.
(a) Software License Grant and Restrictions. Subject to the terms and conditions of this Agreement, Provider grants to Subscriber a nonexclusive, non-sublicensable (unless otherwise permitted in writing under this Agreement), non-transferable, non-assignable, revocable, limited right to allow Authorized Users, to personally access and use the ONLY for Subscriber’s own business use within Subscriber’s internal organization or as otherwise agreed to in writing in an Order Form. Notwithstanding the foregoing, Subscriber is prohibited from allowing any person other than an Authorized User (“Non-Authorized User”) to access and use the Software in whole or in part unless Subscriber has been granted the ability to provide unauthenticated, linked access to the Software to an individual (“Linking User”). Subscriber is responsible for all Authorized Users, Non-Authorized Users, and Linking Users (collectively referred to herein as “Users”) who access and use the Software provided to Subscriber under this Agreement. Except as otherwise permitted in writing under this Agreement, Subscriber and Users shall not copy, reproduce, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, create derivative works from, transmit, or in any way exploit any part of the Content or Software, except that each Authorized User may make print copies of Content exclusively for his or her own personal, noncommercial use in accordance with this Agreement, provided that the Authorized User shall not alter or remove any copyright or other notice marked on the Content or Software. Subscriber may not offer any part or feature of the Software provided herein for sale or distribute it over any medium. Use of external automated tools in conjunction with the Content or Software is prohibited. No other use of the Software is authorized unless otherwise permitted in writing under this Agreement.
(b) Proprietary Rights. The Service is licensed, not sold. Any intellectual property rights in and to the Service, Software and Content shall at all times remain with Provider or its licensors, as applicable. Provider and its licensors reserve all rights not expressly granted to Subscriber. Any content uploaded to the Software by a User (“Subscriber Generated Content” or “SGC”) is the property of Subscriber and shall be deleted upon the earlier of termination or expiration of the applicable Service provided under the relevant Order Form, or this Agreement. Notwithstanding the foregoing, Provider retains the right to remove Subscriber Generated Content if (i) Subscriber or any Users are alleged to have infringed the copyright, trademark or proprietary rights of another or (ii) Subscriber or any Users have breached this Agreement. Provider may send Subscriber materials which have been specified in a relevant Order Form, including electronic files containing Content related to the Services provided by Provider to Subscriber (e.g. list of phone numbers contacted) (“Deliverables”). Unless otherwise stated, such Deliverables are the property of Subscriber upon delivery.
3. Fees & Payment. The Fees for use of the Service areset forth on the attached Order form (the “Subscription Fee”). Subscriber shall pay a prorated Subscription Fee for the initial month’s Services on the “Launch Date.” Launch Date shall mean the date that Provider has completed training Subscriber employees, and Subscriber’s account is active with the ability to use the Service. Thereafter, the Subscription Fee shall be automatically debited against the Subscriber’s credit card at the beginning of each month. Provider may suspend performance of Services if Subscriber fails to pay (or payment is declined) any amount when due and Subscriber shall be liable for all costs, fees and expenses (including attorneys’ fees) incurred by Provider to collect any amount due.
4. Exclusivity. Provider agrees that during the effective period of this Agreement, Provider shall offer vehicle listings that correspond to the Order Form to no more than two Subscribers of communication tools service in thezip codes corresponding to the Order Form.
5. Quality of Service. Use of the Service and any information provided by a Seller is entirely at Subscriber’s own risk. Provider shall have no responsibility or liability for and makes no representations or warranties that: (a) information provided by a Seller is true, accurate, correct, complete or timely, (b) Marketplace Data is true, accurate, correct, complete or timely, or (c) the Service will function without faults, delays or errors. Provider shall have no responsibility or liability for any act or omission, including any response or failure to respond to any text message, any response to a text message, or a Seller’s choice to receive or not receive messages. During peak usage, messages may be time-delayed to maintain overall system performance. Provider makes no representation as the timeliness of delivery of any message. Provider offers the Service through third-party commercial wireless carriers and providers of wireless connectivity and infrastructure.
Provider makes no representation as to the quality of service of these carriers and connectivity providers. Provider is not responsible for: (a) any loss of connectivity between Subscriber and a wireless carrier, (b) any loss of connectivity between Subscriber and a Seller’s wireless carrier, (c) any loss of connectivity between Subscriber’s wireless carrier and Provider’s Internet server, and (d) any loss of connectivity between Subscriber’s or Seller’s wireless services provider and the Service. If a Seller’s mobile device is not actively connected when Provider sends a message, the message may be significantly delayed or lost. A Seller’s connectivity speed, data rates, and resolution are determined by its mobile device and wireless services provider. Some information and messages may not be properly received due to incompatibilities of equipment or a particular wireless service. Provider makes no representation as the accuracy or completeness of any message. Provider shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted via the Service, and shall not be responsible or liable for any decisions made based on such information. Subscriber agrees to not reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. Subscriber agrees that the Service is for its individual use only.
6. Opt-Out/ Opt-In. Provider obtains mobile/cellular telephone numbers of Sellers who have affirmatively provided theirmobile/cellular telephone numbers as a means of contact. The Seller’s voluntary submission of the designated word or code or a Seller’s response to Subscriber shall mean that the Seller has freely and affirmatively granted permission to receive further text message communications through the Service. Provider may send an acknowledgement or “Thank you” message. The Seller may elect to cease receiving messages through the Service at any time by using the unsubscribe command in any text message or by sending a text message that says “STOP,” “END,” “CANCEL,” “REMOVE,” “UNSUBSCRIBE” or “QUIT.”
7. Termination. This Agreement commences on the Effective Date and shall continue in effect until terminated in accordance with this paragraph. Either party may terminate this Agreement upon thirty (30) days advance written notice, after the initial one hundred eighty (180) day period. Provider, in its sole discretion, may terminate Subscriber’s use of the Service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if Provider believes that Subscriber has violated this Agreement or any law, rule or regulation. Provider may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, upon written notice. Subscriber agrees that Provider shall not be liable to Subscriber or any third-party for any termination of access to the Service.
8. Intellectual Property & Proprietary Rights. Subscriber acknowledges and agrees that the Service, Content of the messages, and the Software contain proprietary and confidential information that is protected by copyright, trademark, patent, trade secret and other laws governing proprietary rights. Except as expressly authorized by Provider, Subscriber agrees to not copy, modify, rent, lease, loan, sell, distribute or create derivative works based on the Service, in whole or in part. Subscriber agrees not to obtain unauthorized access to the Service. Subscriber agrees not to access the Service by any means other than through the interface that is provided by Provider for use in accessing the Service. The Service is protected by United States and international law and conventions for the protection of industrial and intellectual property rights. Subscriber may not, without expressed permission from Provider, copy, modify, or publicly display the Content or Messages in whole or in part. Subscriber’s use of the Service, or receipt of Messages, does not create a license or any other rights in Provider’s or its licensor’s trademarks, services, copyrights, or any other intellectual property or proprietary rights.
9. Limitations. Subscriber understands and agrees that the Service is provided “AS-IS” and that Provider assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or the truth, accuracy, correctness, completeness or timeliness of any Seller communications. In order to receive message sent by the Service, Seller(s) must be able to obtain access to the SMS messaging system, either directly or through devices that access web-based content and data, and pay any service fees associated with such access.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF SUBSCRIBER’S TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (E) ANY CLAIMS BROUGHT BY SELLERS IN CONNECTION WITH THE SERVICE; OR (F) ANY OTHER MATTER RELATING TO THE SERVICE. PROVIDER’S LIABILITY, AND THE LIABILITY OF ITS SUPPLIERS, TO SUBSCRIBER OR ANY THIRD PARTIES FOR ANY CLAIM UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO PROVIDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. ANY CLAIM BY SUBSCRIBER AGAINST PROVIDER MUST BE COMMENCED WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO LIABILITY.
10. DISCLAIMER OF WARRANTIES. SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT SUBSCRIBER’S USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER MAKES NO WARRANTY THAT: (A) THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER’S EXPECTATIONS, AND (E) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. ANY INFORMATION OBTAINED THROUGH THE USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE DISCRETION AND RISK AND SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER, ITS COMPUTER SYSTEM(S) OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM PROVIDER OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to Subscriber. This warranty gives Subscriber specific legal rights and Subscriber may also have other legal rights, which vary from state to state.
11. Indemnification. Each party shall indemnify, defend and hold harmless the other party (including that party’s officers, directors, shareholders, members, managers, employees, agents and assignees) from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defense costs and attorneys’ fees arising from or related in any way to: (a) failure to discontinue sending text messages after receiving notification from a Seller of its desire to opt-out of receipt of such messages; (b) any claim which, if proved, would breach any warranty or representation of a party; and (c) any act or omission which will infringe on any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or right of publicity or privacy, or libel, slander, defame or disparage, any third party (“Third Party Claims”), or create risk of liability with respect to any Third Party Claims. A party seeking indemnification shall promptly notify the indemnifying party of the existence or threat of any Third Party Claim immediately upon notice of the existence of any claim or threat of claim, and the indemnifying party shall, at its option, conduct the defense in any such third party action arising as described herein at its sole expense and the indemnified party shall cooperate with such defense. The failure to notify a party of a claim for which indemnification is sought within sixty (60) days of the date that the indemnified party knew, or should have known, of the existence of such third party claim, shall relieve the indemnifying party of any and all obligations.
12. Survival. Because any breach of Section 2, 3, 7, 8, 9 or 10 will cause irreparable harm for which damages would not be an adequate remedy, each party reserves the right to seek injunctive relief with respect thereto without the requirement of posting bond in addition to any and all other remedies available in equity or at law. The obligations set forth in Sections 2, 3, 7, 8, 9, 10 and 11 of this Agreement shall survive termination or expiration of this Agreement.
13. Miscellaneous. This Agreement constitutes the entire agreement between Subscriber and Provider and governs Subscriber’s use of the Service, superseding any prior agreements between Subscriber and Provider. Subscriber also may be subject to additional terms and conditions that may apply when Subscriber use affiliate services, third-party content or third-party software. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to the conflicts-of-laws provisions thereof and the parties consent to the exclusive jurisdiction of the state and federal courts located in the State of Illinois and hereby waive any claim of forum non convenient. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorney’s fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.