Terms of Use

1. DEFINED TERMS.

The following capitalized terms shall have the meanings set forth below:

1.1 Applications: Company’s applications and any modifications, enhancements, updates, new releases, add-on or enhanced functionality made available to Client by Company in connection with the Services.

1.2 Client Information: The videos, data and information inputted by the Users in use of the Services.

1.3 Client Systems: The software (including web browser software), network, network connections, telecommunications lines, internet access connections and other items necessary for Client to access and use the Services.

1.4 Company Marks: The trademarks, service marks, trade names, titles and logos owned or used by Company or any of its affiliates.

1.5 Company Site: www.carfilmapp.com (or such successor or substitute website as may be designated from time to time).

1.6 Documentation: The manuals (whether electronic or printed) and other information relating to the Applications or the Services, as applicable, provided by Company to Client.

1.7 Monthly Fee: The amount set forth as the Monthly Fee on the first page of this Agreement multiplied by the number of Dealership Locations applicable to the Agreement on the date the applicable payment is due.

1.8 One-Time Consulting/Set-up Fee: The amount set forth as the One-Time Consulting/Set-up Fee on the first page of this Agreement.

1.9 Reports: Reports and other materials generated or outputted by or through the use of the Services.

1.10 Services: Company’s proprietary communication facilitation solution services deployed via the Company Site or via an Application downloaded from the Apple App Store or Google Play Store. The Services shall also include the hosting of various Third Party Software.

1.11 Third Party Provider(s): A third party or third parties engaged by Company to provide data center, infrastructure or other services, equipment, of software in connection with the performance of the Services.

1.12 Third Party Software: Software licensed from Third Party Providers access to which is provided to Client as part of the Services.

1.13 Users: Employees of Client authorized to access and use the Services in the manner and in accordance with the terms and conditions set forth herein and that have been assigned discrete login identifications.

2. SERVICES.

2.1 Access. During the Term, Company shall provide to Client a discrete login identification for each User and shall allow the Users access to the Services on the terms set forth herein. Client shall provide Company the identify of each User and shall ensure that only the one employee assigned a discrete login identification accesses the Services using such discrete login identification. Notwithstanding anything to the contrary, the primary office of each User must be located at a Dealership Location and no Dealership Location may have more Users associated with it than the applicable Users per Location.

2.2 Right to Use.

(a) During the Term, Company grants to Client, and Client hereby accepts a non-exclusive, non-transferable right to allow its Users to access and use the Services for the limited purposes, and pursuant to the terms and conditions, set forth herein. The Services may be accessed and used only by Users via the Company Site or via an Application downloaded from Apple’s App Store or Google Play Store. Client has the right to use the Services, and has the right to electronically download, copy or print hard copies of the Documentation and the Reports, solely for its own internal business purposes.

(b) Client shall not use the Services to act as a service bureau or to process or report any third party information. Client shall not delete any identifying marks, copyrights or proprietary right notices from the Applications, the Company Site, the Documentation, or any Reports. Client shall not directly or indirectly modify, translate, decompile, create or attempt to create, by reverse engineering or otherwise, the object or source code of any software provided in connection with the Services (including the Application) or adapt the Applications, the Documents, or any Reports in any way or use them to create derivative works.

2.3 Hosting and Support. During the Term, Company will provide hosting of the Client Information. Client hereby acknowledges and agrees that Company may use a Third Party Provider(s) to provide all or part of the hosting services. All hosting and support of the Client Information and the Services must be obtained by Client through Company.

2.4 Changes. Company reserves the right, in its sole discretion, and from time to time, to change the format or content of the Services, the Services, and the Reports or update, modify or enhance the Services, the Applications, and the Reports whether or not such changes, updates, modifications or enhancements would require changes to Client Systems or Client’s modes of operation.

2.5 Right of Inspection/Audit. Company shall have the right to access Client’s premises and systems to ensure compliance with the provisions of the Agreement. Client agrees to furnish Company all information concerning Client’s use of the Applications and the Services requested by Company.

2.6 Consulting Services. Client may from time to time request Company provide consulting services in connection with the customization, implementation and use of the Services (“Consulting Services”). If Company agrees to perform requested Consulting Services, the Parties will execute a work order detailing the Consulting Services to be provided (each, a “Work Order”), and Client shall pay for the Consulting Services at the rates set forth in the applicable Work Order, or if none, Company’s then-current standard rates. Each Work Order shall be governed by the terms and agreements in this Agreement.

3. CLIENT OBLIGATIONS.

3.1 Client Systems. Client shall be responsible for acquiring, installing and maintaining the Client Systems and ensuring such Client Systems are compatible with the Services.

3.2 Accuracy and Quality of Information. Client shall be responsible for the accuracy, completeness and quality of any and all Client Information. Client shall provide Client Information in the format and manner requested by Company and in accordance with the standards set by Company from time to time.

3.3 On-Line Conduct. Client shall ensure that Client and the information it and its Users transmit and receive complies with all applicable laws, including without limitation, all applicable export and privacy laws, the Telephone Consumer Protection Act and all applicable regulations of the Federal Communications Commissions, and of Company’s and all Third Party Providers’ regulations, guidelines and rules. Company and Third Party Providers may modify or replace their regulations, guidelines and rules any time and from time to time. If Company is informed by government authorities or other parties of inappropriate or illegal use of the Services or other networks accessed through the Services, or Company otherwise learns of such use or has reason to believe such use may be occurring, then Client shall cooperate in any resulting investigation by Company or government authorities. If Client fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Company may immediately suspend Client's service or access to this Services. Further, upon notice to Client, Company may modify or suspend Client’s access to the Services, or terminate this Agreement, (a) as necessary to comply with any law or regulation as reasonably determined by Company or (b) if deemed reasonably necessary by Company to prevent any harm to Company or its business.

3.4 Use of Information. Client hereby grants to Company the right to use, distribute, reformat, recompile and display any and all of the Client Information in connection with providing the Services, in connection with Company’s compilation of information for benchmarking and research purposes, and for any other business purpose.

4. PUBLICITY.

Client hereby grants to Company the right to use the Client’s (and the Client’s affiliates’) names, logos, trade names, trademarks and service marks (“Client Marks”) and the Client Information in any and all of Company’s marketing, demonstrations, advertisements, publicity, press releases, and promotions. In addition, Client hereby grants to Company the right to promote and refer to Client as a participating user of the Applications and the Services.

5. PROPRIETARY RIGHTS.

5.1 Applications. All rights, title and interests in and to the Services, the Documentation, the Reports, and all Applications, including all modifications, changes and enhancements thereto, are, and shall at all times be, the sole and exclusive property of Company or its licensor.

5.2 Reports. Client has the right to use Reports solely in connection with its own internal business purposes. All rights, title and interests in and to the Reports (except for any Client Information contained in such Reports) shall be owned by Company.

5.3 Company Marks. Company is the sole owner of the Company Marks and nothing in this Agreement shall be construed as granting Client any rights in the Company Marks.

5.4 Confidentiality. Client may have access to information that is proprietary or confidential to Company including without limitation, technical information, business processes, reporting features and analytics (the "Confidential Information"). Client shall: (a) hold the Confidential Information in confidence by taking reasonable measures (and at least those measures consistent with normal industry practice) to prevent unauthorized disclosure of such Confidential Information, in any form, to any third party; and (b) use Confidential Information only for the purposes specified in the Agreement. Confidential Information shall not include information which: (x) is or becomes publicly known through no act or omission of the recipient; (y) the recipient can demonstrate with competent written proof was in the recipient's possession prior to such access or disclosure (other than through an unauthorized disclosure); or (z) is disclosed to the recipient by a third party having legitimate possession thereof without restriction on such disclosure.

5.5 General Skills. Notwithstanding anything to the contrary in the Agreement or otherwise, Company shall retain all right, title and interest in and to any and all Applications, ideas, concepts, know-how, development tools, methodologies, processes, procedures, technologies or algorithms (“Know-How”) developed in connection with or when providing the Services, whether developed alone or with others. Nothing contained in the Agreement shall restrict Company from the use of any Know-How. Company shall not be prohibited or enjoined at any time by Client from utilizing any skills or knowledge acquired during the course of providing the Services.

6. FEES.

6.1 Service Fees. During the Term, Client shall pay to Company (or to another other entity if so directed by Company) the applicable Monthly Fee in advance, on or before the first day of each month. The number of Users included in the Users per Location is included in the Monthly Fee. If Company agrees to add additional Users, the Monthly Fee will be increased by an amount agreed in writing between Company and Client for such additional Users, or if none, at Company’s then-current standard rates for such additional Users. In addition, Client shall pay Company the One-Time Consulting/Set-up Fee for each Dealership Location, and such One-Time Consulting/Set-up Fee shall be due on or before the first day of the month following the date such Dealership Location is first added to the Location Schedule. All fees paid by Client are non-refundable.

6.2 Payment Schedule. Client shall pay all invoices (other than those for Monthly Fees and One-Time Consulting/Set-up Fees) within 30 days after the invoice date. All amounts shall be paid in United States Dollars. Client shall pay late charges on all overdue amounts at a rate equal to the lesser of 1.5% per month or the highest rate of interest permitted by law, and shall pay all collection costs incurred by Company related to such overdue amounts.

6.3 Taxes. Client shall pay or reimburse Company for all applicable sales, use, or transfer taxes and all duties, however designated, which are levied or imposed on the fees due to Company hereunder, if any.

7. WARRANTIES.

7.1 Client Warranty. Client represents and warrants to Company that (a) the Client Information and the Client Marks do not infringe the intellectual property rights of any third party, (b) the Client Information do not contain any defamatory materials or statements, obscenity, pornography, or violate any third party’s right of privacy or publicity; and (c) Client will not engage in any “spamming”, or any offensive, harassing or illegal conduct; and (d) Client shall comply with all applicable laws, including without limitation, all applicable export and privacy laws, the Telephone Consumer Protection Act and all applicable regulations of the Federal Communications Commissions.

7.2 Disclaimer. COMPANY PROVIDES THE SERVICES, THE APPLICATIONS, THE DOCUMENTS, THE REPORTS AND THE THIRD PARTY SOFTWARE “AS IS” AND MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THIS AGREEMENT, THE THIRD PARTY SOFTWARE, THE SERVICES, THE APPLICATIONS, THE CONSULTING SERVICES, THE DOCUMENTS, OR THE REPORTS, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES RELATING TO (A) MERCHANTABILITY, (B) FITNESS FOR A PARTICULAR PURPOSE, (C) NON-INFRINGEMENT, (D) QUIET ENJOYMENT, (E) ARISING OR IMPLIED FROM USAGE OF TRADE OR COURSE OF DEALINGS, (F) REGARDING THE ACCURACY, TIMELINESS, AVAILABILITY, COMPLETENESS, ADEQUACY OF THE SERVICES, THE DOCUMENTS THE REPORTS, OR ANY OTHER SERVICE OR DELIVERABLE PROVIDED BY OR ON BEHALF OF COMPANY.

8. LIABILITY.

8.1 Client Indemnity. Client shall indemnify and defend Company and its affiliates, and each of their respective, employees, managers, owners, and representatives from and against any and all damages, losses, liability and expenses (including reasonable attorney’s fees) suffered or incurred by Company or to which Company becomes subject, arising out of or relating to any claim (1) that Client has breached any of its representations, warranties, or obligations in this Agreement, (2) relating to any personal injury or property damage to any Client employee, contractor or representative or other Client designee; (3) relating to claims by Client’s suppliers, customers, vendor and third party providers; and (4) any other claims or damages arising from Client's business, resources or services or use of the Services.

8.2 Damages. IN NO EVENT SHALL COMPANY OR ITS OFFICERS, DIRECTORS, AGENTS, SUPPLIERS OR CONTRACTORS BE LIABLE TO CLIENT FOR SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR FOR ANY LOST PROFITS, LOSS OF REVENUE, OR LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION (INCLUDING CLAIMS CAUSED BY COMPANY’S OWN NEGLIGENCE), WHETHER COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF COMPANY, IF ANY, ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE FEES ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING PROVISIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9. GENERAL.

9.1 Assignment and Resale of Services. Client may not directly or indirectly sell, transfer, assign, convey, pledge, encumber or otherwise dispose of its rights or obligations under the Agreement without the prior written consent Company. Any assignment in contravention of this Section shall be void. Client may not resell the Services, the Documentation or the Reports without Company’s written consent.

9.2 Survival. Sections 3.5, 4.4, and 4-9, and the termination provisions, each survive termination of this Agreement.

9.3 Force Majeure. Company shall not be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including act or war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, acts of third parties, failures of third party software or equipment, power or electrical failures and internet and connectivity failures.

9.4 Governing Law. The Agreement shall be governed by and construed under the laws of the State of Ohio, excluding any conflicts of law provisions. Any dispute arising out of or related to this Agreement shall be brought in the state or federal courts located in Cuyahoga County, Ohio. Each hereby irrevocably accepts the exclusive jurisdiction of the aforesaid courts. Each party hereby further irrevocably waives any claim that any such court lacks jurisdiction over it, and agrees not to plead or claim, in any legal action or proceeding with respect to this Agreement brought in any of the aforesaid courts, that any such court lacks jurisdiction over it.

9.5 Severability; Waiver. In the event that any provision of the Agreement shall not be enforceable, the remainder of the Agreement shall remain in full force and effect. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, for any reason, the invalidity, illegality or unenforceability of that provision will not affect any other provisions in this Agreement, but the invalid provision will be substituted with a valid provision which most closely approximates the intent and the economic effect of the invalid provision and which would be enforceable to the maximum extent permitted in the jurisdiction.

9.6 Entire Agreement. The Agreement, and any attachments, schedules or appendices thereto, including any subsequently executed Work Orders, constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes any and all other agreements, written or oral, that the parties heretofore may have had with respect to the subject matter herein.

10. APPLE iOS IN APP PURCHASES.

10.1 Purchase of an ios In App Purchase will result in limited or full access to the app or features within the app.

10.2 An agreement is made to pay once or monthly at the price specified when purchasing.

10.3 Failure to pay the monthly or your one time payment will result in loss of access to your account or feature you purchased.