1. Access. Subject to the terms and conditions of the Agreement, including the payment of applicable fees, AutoVitals Inc. (AV) hereby grants End User a non-exclusive, non-transferable right to access and use the Service, during the term of this Agreement. End User may only use the Service for End User’s own internal business purposes, and not in the operation of a service bureau or for the benefit of any other person or entity. The Agreement is for the provision of Service based on AV’s programming code, not for the provision of the programming code, and the programming code is not being delivered or licensed hereunder. All rights not specifically granted to End User hereunder are retained by AV.
2. Permissions And Releases.
(a) End User agrees that AV may include educational information or links to educational information in emails sent to End User’s customers on a regular basis, not exceeding two emails per vehicle per month. This educational information serves solely for promotion of preventive maintenance benefits and shall not be product advertisement.
(b) End User permits AV to create, access and modify End User’s listing in any online business listing (e.g., Google local business center) on its behalf.
(c) End User permits AV to collect Customer Data from End User’s customer on its behalf. All Customer Data is stored on AV servers and used for the purpose of providing the Service including, without limitation, survey and other statistical analysis.
(d) End User permits or will get permission for AV to reuse any logo or other design elements (e.g., images) used on End User’s current website.
(e) In case End User’s website is provided by a third party, End User makes sure that testimonials are shown on the home page and are updated not less frequently than once a month.
(f) AV agrees NOT to sell or rent email addresses imported from, or collected by, End User using AV’s software. Furthermore, AV agrees to get End User’s consent for any promotional or other email transaction to the customer beyond the automated email communication provide by the package selected, e.g., service reminders, thank-you emails etc..
3. Fees and Payment. End User will pay AV for the Service in the amounts agreed upon and set forth in the Agreement. AV’s invoices will be deemed to be correct and acceptable to End User unless End User advises AV of disputed items within ten (10) days of their receipt. Payments shall be made to AV within thirty (30) days of invoice date. If End User fails to pay any invoice in accordance with the foregoing terms, End User shall also pay interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by law. The prices and rates for the Service do not include applicable federal, state, or local sales or use taxes, and End User will pay or reimburse AV for such taxes. Promptly upon expiration or termination of this Agreement for any reason, End User shall pay any unpaid and outstanding fees due to AV that have accrued as of the date of expiration or termination.
4. Confidential Treatment.
4.1 Confidential Information. In connection with the Agreement, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, source code, plans, financial information, customer and supplier lists, forecasts, and projections. For the avoidance of doubt, Customer Data (as defined below) is the Confidential Information of Customer and the Service is the Confidential Information of Licensor. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto; (v) can be documented as independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction.
4.2 Obligations. Except as expressly permitted in the Agreement, each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information. Each party shall use the Confidential Information of the other party solely for the purpose of the Agreement. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Upon request or termination of this Agreement, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that neither party shall be obligated to purge any data that has been archived, provided that the terms of this Section 5 are otherwise observed.
5. Compliance with Laws. Both parties agree to comply with all federal, state and local laws, rules and regulations applicable to each party’s receipt and use of data provided to the other. AV reserves the right to revise the terms or conditions under the Agreement and/or the Service (including without limitation the right to withdraw or restrict affected data) to meet any requirement imposed by federal, state, or local law, rule or regulation, or to address matters concerning privacy and confidentiality, upon reasonable notice to End User.
6. Ownership. AV shall at all times be, and remain, the sole and exclusive owner of all intellectual property rights in the Service including, without limitation, the underlying software and AV’s trademarks used in relation to the Service. The Agreement does not transfer any right, title, or interest in the Service to End User. Except for the rights expressly granted to End User in the Agreement, End User does not hold, and will not seek to assert, any right, title or interest in the Service. As between the parties, except as otherwise set forth in a writing signed by the parties, all right, title and interest in any improvements, enhancements or other modifications of Service including any improvements, enhancements or modifications created, suggested or requested by End User, after the Effective Date, shall be solely owned by AV.
7. Customer Data. End User owns and shall retain all rights in and to the Customer Data. AV shall provide End User with electronic access to the Customer Data in a manner to be mutually agreed. AV does not acquire any ownership interest in the Customer Data by virtue of providing the Service. Notwithstanding the foregoing, End User hereby grants AV a non-exclusive, perpetual, irrevocable, worldwide license to use and adapt the Customer Data (a) to provide the Service, and (b) to provide network and Service analytics and data to other customers, potential customers and the public, so long as such analytics and data do not specifically identify a customer.
8. Warranty and Disclaimers; Service Level Agreement.
8.1 Warranties and Disclaimers. AV warrants to End User that AV will use commercially reasonable efforts to perform the Service in a timely manner. Because the Service involves conveying information provided to AV by other sources, AV cannot and will not, for the fee charged for the Service, be an insurer or guarantor of the accuracy or reliability of the Service. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE FIRST SENTENCE OF THIS PARAGRAPH, THE SERVICE AND SUPPORT SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND AV EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AV DOES NOT WARRANT THAT THE SERVICE WILL MEET END USER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. AV FURTHER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE ACCURACY, COMPLETENESS OR CURRENTNESS OF ANY DATA OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY AV HEREUNDER AV SHALL NOT BE LIABLE TO END USER FOR ANY INOPERABILITY OF THE SERVICE OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. ANY USE BY END USER OF THE SERVICE IS AT END USER’S OWN RISK. THE LIMITED WARRANTY IN THE FIRST SENTENCE OF THIS PARAGRAPH IS THE ONLY WARRANTY PROVIDED BY AV REGARDING THE SERVICE AND THE AGREEMENT.
8.2 Service Level Support.
(a) AV supports End User and End User’s customers through online support for level 1: ‘live response (Online chat for problem capture and screen sharing for problem analysis), level 2: email and level 3: phone.
Response Time for Level 1 and 2: 06 hours
Response Time for Level 3: 24 hours
(b) The Service will be available twenty-four (24) hours a day, seven days a week, with a 99% uptime guarantee. 99% uptime guarantee means that for 99% of the time during any calendar month the Service shall be available for use by the End User and its customers; provided, that the Service will not be deemed unavailable for any downtime or outages by reason of (i) problems caused by factors outside of AV’s reasonable control, (ii) problems resulting from any actions or inactions by End User or any third party, (iii) problems resulting from End User’s, or any third party’s, network, applications or equipment applications or equipment not within AV’s sole control, or (iv) network unavailability during scheduled maintenance of AV’s network and/or web servers. In the event that the Service is available less than 99% of the time in any given calendar month, then End User will, as its sole and exclusive remedy, be entitled to a refund of a portion of the monthly fee with respect to that month, as set forth below.
Service Availability Refund
99 to 100% 0%
98 to 99% 1%
95 to 98% 2%
85 to 95% 3%
84.9 or below 4%
(c) The outage duration shall be less than 2 hours on weekends. Bugfix resolution updates may occur in the time from 8:00PM to 2:00AM PST any day.
9. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID TO AV BY END USER DURING THE MOST RECENT TWELVE (12) MONTHS.
10. Publication. End User may publish or disclose information regarding the Service; provided, that all such publications and disclosures contain an appropriate acknowledgement that the Service is provided by AV and is approved, in writing, by AV. Neither party will use the name of the other party, in any advertising or publicity, without the prior written approval of the other party.
11. Waiver. Either party may waive compliance by the other party with any covenants or conditions contained in the Agreement, but only by written instrument signed by the party waiving such compliance. No such waiver, however, shall be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
12. Choice of Law. The Agreement is governed by and construed in accordance with the internal substantive laws of the State of California.
13. Binding Arbitration. Any dispute arising out of or relating to the Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in Santa Barbara County, California. In addition to all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys’ fees and costs. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief, or from pursuing an action to collect unpaid amounts due under the Agreement, in a court of competent jurisdiction.
14. Successors and Assigns. The Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. The Agreement may not be assigned, transferred, shared or divided in whole or in part by End User without AV’s prior written consent.
15. Excusable Delays. Neither party shall be liable for any delay or failure in its performance under the Agreement (except for the payment of money) if and to the extent which such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God, public enemies, or terrorists, labor disputes, equipment malfunctions, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, Internet outages, fire, earthquakes, flood, epidemics, riots and strikes. If a party becomes aware that such an event is likely to delay or prevent punctual performance of its own obligations, the party will promptly notify the other party and use its best effort to avoid or remove such causes of nonperformance and to complete delayed job whenever such causes are removed.
16. Notices. All notices, requests and other communications hereunder shall be in writing and shall be deemed delivered at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three (3) days after mailing by first class mail with postage prepaid. Notices to AV and End User shall be addressed to the addresses provided on the signature page, or to such other address as either party shall designate in writing to the other from time to time.
17. Amendments. The Agreement may only be amended in writing signed by authorized representatives of both parties.
18. Survival. The provisions of Sections 3, 4, 6, 7, 8.1, 9, 10, 11, 14 and 16, in addition to any other provisions of the Agreement that would normally survive termination, shall survive termination of the Agreement for any reason.
19. Authority to Sign. Each party represents that the person signing the Agreement has all right, power and authority to sign the Agreement on behalf of such party.
20. Termination. Without limiting other rights or remedies, each party will have the right to terminate this Agreement upon written notice if the other party breaches or is in default of any material term or condition of this Agreement and such breach is not cured within thirty (30) days after written notice of such breach. If the purchaser terminates this agreement before the expiration date, without cause, a cancellation fee equivalent to 6 monthly subscription payments will be charged.
20. Subscription Fees. Use of AV products will incur a monthly subscription fee in addition to the licensing fee charged at checkout. The monthly subscription costs vary by product. The initial term of this agreement will commence on the Effective Date and continue for a period of twelve(12) months, unless earlier terminated in accordance with this Agreement. It will then automatically renew for successive periods of one (1) month each unless at least thirty (30) days before the end of the then-current term, either party provides written notice of non-renewal.