1. PUBLICATION. The Client 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 previously 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.
2.PERMISSIONS AND RELEASES.
- (a) The Client agrees that AV may include educational information or links to educational information in emails/texts sent to the Client’s customers on a regular basis on the Client’s behalf and only the Client’s consent. This educational information serves for promotion of preventive maintenance benefits and shall not be product advertisement. Emails/texts are sent from a Client specific email address/phone number. The Client’s customers can opt out from emails/texts received.
- (b) The Client permits AV to create, access and modify the Client’s listing in any online business listing (e.g., Google local business center) on its behalf. This content is approved for ALL business directories by the Client during Onboarding.
- (c) The Client permits AV to collect Customer Data from the Client’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. The client’s customer can refuse the collection upon reception of the digital communication collecting the information.
- (d) The Client permits or will get permission for AV to reuse any logo or other design elements (e.g., images) used on the Client’s current website solely for the purpose of providing the service described in this Agreement.
- (e) In case the Client’s website is provided by a third party and not AV, the Client shall ensure that testimonials collected by AV 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 or Customer Data imported from, or collected by, the Client using AutoVitals’ software.
- (g) AV agrees not to store any credit card information. Customer specific data captured and/or stored by AutoVitals is limited to contact data, including address, phone numbers and email address as well as vehicle identification information and a copy of the invoice (collectively, “Customer Data”). Customer Data does not contain information about credit card or other payment methods.
- (h) At contract termination and upon payment of all outstanding invoices the Client receives the right to re-use any visible design element (e.g., images) or text asset (together “the Assets”), unless copyrighted and marked as such. Reusing the Assets during the contract term is otherwise prohibited.
- (i) In the case where AV is providing Website service, AV will manage Client’s existing domain and any additional accounts (e.g., Google +) at beginning of the contract, once it is released to AV. In case the domain and other accounts are purchased by AV during the contract term, it will be released to the Client at termination and full payment of outstanding invoices.
3.ACCESS. Subject to the terms and conditions of this Agreement, including the payment of applicable fees, AV hereby grants Client a nonexclusive, non-transferable right to access and use the Service, during the term of this Agreement. Client may only use the Service for Client’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 Client hereunder are retained by AV.
(a) 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.
(b) 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.
(c) 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 Client.
5.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 Client. Except for the rights expressly granted to Client in the Agreement, Client 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 Client, after the Effective Date, shall be solely owned by AV.
6.CUSTOMER DATA. Client owns and retains all of its Customer Data. AV shall provide Client with electronic access to the Customer Data in a manner to be mutually agreed. Client 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.
7.WARRANTY AND DISCLAIMERS. AV warrants to Client 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 CLIENT’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 CLIENT FOR ANY INOPERABILITY OF THE SERVICE OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. ANY USE BY CLIENT OF THE SERVICE IS AT CLIENT’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.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 CLIENT DURING THE MOST RECENT TWELVE (12) MONTHS.
9.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.
10.CHOICE OF LAW. The Agreement is governed by and construed in accordance with the internal substantive laws of the State of California.
11.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 Client without AV’s prior written consent.
12. 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 all commercially reasonable efforts to avoid or remove such causes of nonperformance and to complete delayed job whenever such causes are removed.
13.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 Client 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.
14.AMENDMENTS. The Agreement may only be amended in writing signed by authorized representatives of both parties.
15.SURVIVAL. The provisions of the Agreement that would normally survive termination, shall survive termination of the Agreement for any reason.
16.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.