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Last updated: January 2022

These AutoVitals Standard Terms and Conditions (the “Standard Terms”) are a legal agreement between AutoVitals and Client regarding its use of the Services and associated Content during the Term of the Services acquired by Client.

BY ACCEPTING THESE STANDARD TERMS THROUGH EXECUTION OF AN ORDER FORM, BY USE OF THE SERVICES, OR OTHERWISE ELECTRONICALLY INDICATING YOUR ACCEPTANCE, YOU AGREE TO THESE STANDARD TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

THESE STANDARD TERMS AND ANY ASSOCIATED ORDER FORMS OR STATEMENTS OF WORK GOVERN YOUR ACQUISITION AND USE OF THE SERVICES AND WILL SUPERSEDE ALL PRIOR TERMS OR AGREEMENTS BETWEEN YOU AND AUTOVITALS.

THESE STANDARD TERMS MAY BE MODIFIED OR AMENDED BY AUTOVITALS IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME.  Changes will be effective immediately, provided AutoVitals will provide a minimum of thirty (30) days prior written notice prior to such change.  Continued use of the Service thereafter shall be deemed consent to and acceptance of these Standard Terms as revised.  If you do not agree to any change(s) your sole remedy is to terminate this Agreement and cease using and accessing the Service.

Capitalized terms used herein but not otherwise defined have the meaning set forth in the AutoVitals Order Form or Statement of Work, as applicable. As used herein, “Agreement” means these Standard Terms and any associated Order Form or Statement of Work.

1. PUBLICATION. The Client may publish or disclose information regarding the Services; provided, that all such publications and disclosures contain an appropriate acknowledgement that the Services are provided by AutoVitals, or its applicable affiliate, and is previously approved, in writing, by AutoVitals. 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 AutoVitals 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 with the Client’s consent.  This educational information serves for promotion of preventive maintenance benefits and will not be product advertisement. Emails/texts are sent from a Client specific email address/phone number and Client bears responsibility for obtaining any consents required for such communications. The Client’s customers can opt out from emails/texts received.

(b) The Client permits AutoVitals 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 AutoVitals to collect Customer Data from the Client’s customer on its behalf. All Customer Data is stored on AutoVitals servers and used for the purpose of providing the Services including, without limitation, survey and other statistical analysis. The Client’s customer can refuse the collection upon receipt of the digital communication requesting such information.

(d) The Client permits or will otherwise secure the necessary authorizations, AutoVitals 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 Services described in this Agreement.

(f) AutoVitals agrees NOT to sell or rent email addresses or Customer Data imported from, or collected by, the Client using AutoVitals’ Services.

(g) AutoVitals 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.

(i) If AutoVitals is providing Website services, AutoVitals will manage Client’s existing domain and any additional accounts (e.g., Google Business Profile) as of the Effective Date upon release to AutoVitals. If website domains and other accounts are purchased by AutoVitals on behalf of Client during the Term of this Agreement, such accounts will be released to the Client upon termination and full payment of amounts due to AutoVitals.

(j) This Agreement will apply to all updates and upgrades (if any) subsequently provided by AutoVitals to Client. AutoVitals may update the functionality, user interface, usability, and other user documentation, training, and educational information of, and relating to the Service from time to time in its sole discretion.

3. ACCESS & RESTRICTIONS.

(a) Subject to the terms and conditions of this Agreement, including the payment of applicable fees, during the Term of this Agreement, AutoVitals hereby grants Client a limited, nonexclusive, non-transferable license (without the right to sublicense) to access and use the Services for purposes consistent with this Agreement.

(b) Client will not: (i) license, sublicense, sell, resell, transfer, assign, encumber, lease, distribute or otherwise commercially exploit (including for competitive purposes) or make available to any third party the Services or any documents or materials made available to Client in any form or medium relating to the Services (the “Content”); (ii) modify or make derivative works based upon the Services or the Content, including without limitation, customization, translation, or localization; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Service, or the underlying ideas or algorithms of the Service; (v) use the Service to develop software or other services; (vi) use the Service to provide services to any third party on an application service provider or service bureau basis; (vii) use the Service in any way that violates this Agreement or any law; or (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Service.

(c) The Services may contain third party software or application programming interfaces that are included in the Services or otherwise made available to Client (“Third Party Products”). Client’s use of any Third-Party Products, whether stand alone or integrated into the Service, in each case, is subject to any additional terms and conditions or limitations set forth the applicable Order Form and by execution of the Order Form, Client acknowledges and agrees to abide by the Third-Party Product’s terms and conditions.

(d) Client is solely responsible for any and all activity occurring under its and its authorized user accounts and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Client may be required to choose a password and a username and Client is entirely responsible for maintaining the confidentiality of its password and account. AutoVitals will act as though any electronic communications it receives under Client’s passwords, username, and/or account number will have been sent by Client. Client agrees to notify AutoVitals immediately of any unauthorized use of its account or any breach of security of its account. AutoVitals will not be liable for any loss that Client may incur as a result of unauthorized use, regardless if Client had knowledge of such unauthorized use.

(e) AutoVitals may make modifications to the Services or particular components of the Services and will use commercially reasonable efforts to notify Client of any material modifications. for such Services in its sole discretion.

(f) For the avoidance of doubt, this Agreement is for the provision of Services based on AutoVitals’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 AutoVitals.

(g) AutoVitals may immediately suspend access to the Services if AutoVitals reasonably believes or concludes that Client is in breach of this Agreement.

4. CONFIDENTIALITY.

(a) In connection with this 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 is the Confidential Information of Client, and the Services are the Confidential Information of AutoVitals. 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) Except as expressly permitted in this Agreement, each party will maintain the Confidential Information of the other party in strict confidence and will not disclose, publish or copy any part of such Confidential Information. Each party will use the Confidential Information of the other party solely for the purpose of this Agreement. Each party will 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 and to the extent permitted under applicable law, 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 will return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that neither party will be obligated to purge any data that has been archived, provided that the terms of this Section 4 are otherwise observed.

(c) 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. AutoVitals reserves the right to revise this Agreement and/or the Service (including without limitation the right to withdraw or restrict affected data) in its sole discretion 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.

(a) As between Client and AutoVitals, AutoVitals will at all times be, and remain, the sole and exclusive owner of the Resultant Data and all intellectual property rights in the Services including, without limitation, the Content, the underlying software and AutoVitals’, or its licensor’s, trademarks  used  in  relation  to  the  Services.  This Agreement does not transfer any right, title, or interest in the Service to Client. Except for the rights expressly granted to Client in this 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 expressly agreed to in writing between the parties, all right, title and interest in any improvements, enhancements or other modifications of Service including any improvements, enhancements or modifications created, whether or not suggested or requested by Client, after the Effective Date, will be solely owned by AutoVitals. If Client or any its authorized users sends or transmits any communications or materials to AutoVitals suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), AutoVitals is free to use such Feedback without any other or limitation between the parties governing such Feedback.

6. CUSTOMER DATA.

(a) As between AutoVitals and Client, Client owns and retains all of its Customer Data. AutoVitals will provide Client with electronic access to its Customer Data in a manner as mutually agreed. Client hereby grants AutoVitals a non-exclusive, perpetual, irrevocable, worldwide license to use and adapt the Customer Data (i) to provide the Service, and (ii) 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. For the avoidance of doubt, Customer Data does not include anonymized aggregate data collected in order to compile statistical and performance information related to the provision and operation of the Services (“Resultant Data”) and Client consents to the collection of such data for such purpose.

(b) Customer Data that Client sends, receives, or stores via the Services provided to a Client location in Canada includes “personal information” as defined under the Personal Information Protection and Electronic Documents Act (2000, c. 5) (PIPEDA) (“Canada Personal Information”), and AutoVitals will use and disclose such Canada Personal Information solely (i) for the purpose of fulfilling AutoVital’s obligations or exercising its rights under this Agreement; (ii) as approved in advance in writing by Client; (iii) in accordance with Client’s instructions; or (iv) for the purpose of complying with applicable laws, including without limitation in response to legal process.

7. WARRANTY AND DISCLAIMERS.

(a)  Client represents, warrants, and covenants to AutoVitals that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by AutoVitals and processed in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.

(b) AutoVitals warrants to Client that AutoVitals will use commercially reasonable efforts to perform the customer support services in a timely manner. Because the Service involves conveying information provided to AutoVitals by other sources, AutoVitals cannot and will not, be an insurer or guarantor of the accuracy or reliability of the Services. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT, THE SERVICES AND PROFESSIONAL AND SUPPORT SERVICES ARE PROVIDED TO CLIENT “AS IS” AND “AS AVAILABLE” AND AUTOVITALS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AUTOVITALS 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. AUTOVITALS 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 AUTOVITALS HEREUNDER. AUTOVITALS WILL 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.

AUTOVITALS MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF CLIENT USES THE SERVICES OR THE CONTENT OUTSIDE THE UNITED STATES OF AMERICA, THE CLIENT IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.

FURTHER, AUTOVITALS, AND ANY THIRD PARTIES ACTING ON ITS BEHALF, WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICES, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY CLIENT DUE TO CAUSES BEYOND AUTOVITALS’, OR ANY THIRD PARTIES ACTING ON ITS BEHALF, CONTROL.

8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SUB-CONTRACTORS, LICENSORS, OR PARTNERS 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 THIS 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. IN NO EVENT WILL AUTOVITALS’ AGGREGATE LIABILITY HEREUNDER, TOGETHER WITH ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS, SUBCONTRACTORS, AGENTS AND AFFILIATES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE FEES ACTUALLY PAID TO AUTOVITALS BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO A CLAIM.

9. INDEMNIFICATION.

(a) Client will indemnify and hold harmless AutoVitals (including its affiliates, related entities, officers, directors, employees, contractors, subcontractors, licensors, partners and agents) from any third party actual or alleged claim, demand, judgement, liability, damage, cost and expense, including attorneys’ fees and cost of collection and costs, in each case arising out of, relating to, or incurred in connection with, any of the following: (i) Client’s breach of this Agreement; (ii) modifications to the Services not made by AutoVitals; (iii) Client’s negligence or willful misconduct; and (iv) Client’s use of the Services in combination with data, software, hardware, equipment or technology not provided by AutoVitals or authorized by AutoVitals in writing.

(b) AutoVitals will have the right to appoint counsel to defend any claim, action, suit, investigation or proceeding (“Claim”) or third party Claim covered by Client’s indemnification obligations set forth herein at Client’s cost and expense. Client will have no right to control the defense or settlement of any such Claim, and it will not settle or compromise any such Claim without AutoVitals’ prior written consent.

10. WAIVER. Either party may waive compliance by the other party with any covenants or conditions contained in this Agreement, but only by written instrument signed by the party waiving such compliance. No such waiver, however, will be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.

11. CHOICE OF LAW & VENUE.  This Agreement is governed by and construed in accordance with the internal substantive laws of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts of California in each case located in the city of San Diego, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

12. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. This Agreement may not be assigned, transferred, shared or divided in whole or in part by Client without AutoVitals’s prior written consent.

13. EXCUSABLE DELAYS. Neither party will be liable for any delay or failure in its performance under this 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.

14. NOTICES. All notices, requests and other communications hereunder will be in writing and will 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 AutoVitals and Client will be addressed to the addresses provided on the Order Form, or to such other address as either party will designate in writing to the other from time to time.

15. AMENDMENTS. Except as otherwise set forth in this Agreement, this Agreement may only be amended in writing signed by authorized representatives of both parties.

16. SURVIVAL. The provisions of this Agreement that would normally survive termination, will survive termination of this Agreement for any reason.

17. AUTHORITY TO SIGN. Each party represents that the person signing this Agreement has all right, power and authority to sign this Agreement on behalf of such party.

18.EXPORT REGULATION. The Services utilize software and technology that may be subject to United States of America (“U.S.”) export control laws, including the U.S. Export Administration Act and its associated regulations. Client will not, directly, or indirectly, export, re-export, or release the Services or the underlying software or technology to or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the U.S.

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