AUTOFLYTE PLATFORM
TERMS & CONDITIONS
Updated January 19, 2021
YOU MUST ACCEPT THESE TERMS AND CONDITIONS OF USE BEFORE USING AN AUTOFLYTE PLATFORM. If you do not agree to these Terms, you should not use any portion of the Platform.
This Agreement covers the subscription to and use of the EDGE platform and any other AUTOFLYTE Platform provided by AUTOFLYTE. By accessing the EDGE Platform or other AUTOFLYTE Platform or clicking to “Accept” or “Agree” to these Terms & Conditions, the Customer accepts and agrees to be bound and abide by the Terms and Conditions of this Agreement. If Customer does not agree with these Terms and Conditions, Customer may not use EDGE Platform or other AUTOFLYTE Platform. The Terms and Conditions remain in full force and effect while you use the EDGE Platform, unless terminated earlier in accordance with the Terms and Conditions. The Company may revise and update these Terms and Conditions from time to time in its sole discretion. All changes are effective immediately when posted and apply to all access and use of the EDGE Platform or other AUTOFLYTE Platform thereafter. Customer’s continued use of the EDGE Platform or other AUTOFLYTE Platform following the posting of revised Terms and Conditions means that the Customer accepts and agrees to the changes. Customers should check periodically so that they are aware of any changes, as they are binding upon Customer.
If you register for a free trial of our Services, this Agreement also governs that free trial.
If the Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that Customer has the authority to bind such entity and its affiliates to these Terms and Conditions, in which case the terms “Customer” shall refer to such entity and its affiliates. If Customer does not have such authority, or if Customer does not agree with these Terms and Conditions, Customer must not accept this agreement and may not use EDGE Platform.
Customer may not access the Services if Customer is Company’s direct competitor, except with Company’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
These Customer Terms & Conditions, together with an Order Form (“Order Form”) and related Additional Terms, constitute the entire agreement between the parties (the “Agreement”).
Definitions.
Capitalized terms in the Agreement if not otherwise defined shall have the meaning set forth below:
- “Deliverables” shall mean materials, tools, website access and other resources necessary for an End User to use, access and receive the Product(s).
- “Company” or “AUTOFLYTE” shall mean AUTOFLYTE, LLC, a Tennessee limited liability company, with its principal place of business at 750 Old Hickory Boulevard, Building Two, Suite 180, Brentwood, TN 37027.
- “Customer” shall mean any person or organization with whom the Company enters into an Agreement subject to these terms and conditions.
- “End User” means an individual or entity to which the Product(s) and Services are made available for ordinary business.
- “Error” means a problem with the Product(s) to the extent that it fails to comply with the applicable documentation in all material respects.
- “Intellectual Property” shall mean any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including all: (i) trade dress, trademark, and service mark rights and the goodwill and applications associated therewith; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask works applications, mask works registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; (vi) divisional, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered; (vii) domain names; and (viii) rights relating to derivative works.
- “Product(s)” shall mean the Company products, software or services listed on the Order Form, as they may be changed from time to time upon mutual agreement of the parties.
- “Services” shall mean the services provided by Company or other provider to the Customer or End User.
- “Company Tools” shall mean Company’s pre-existing Intellectual Property Rights including its know how, design tools, methodologies, research, processes, commercially available “shrink wrap” Product(s) or fonts, or other means that may be used to conceive, design, assemble, manage or deliver the Deliverables, and improvements or modifications to such Company Tools.
- “Upgrade” means any and all major and minor releases or other modifications to the service, including but not limited to maintenance fixes, modifications, new modules, enhancements and/or other additional features.
- “Urban Science” shall mean Urban Science Applications, Inc., a Michigan corporation, with its principal place of business at 400 Renaissance Center, Suite 2900, Detroit, MI 48243.
- “US” shall mean the United States of America.
GRANT OF LICENSE.
Subject to the terms and conditions of the Agreement, Company hereby grants to the Customer a non-exclusive, non-transferrable license, during the term of the Agreement, to use the Product(s) for Customer’s own business purposes.
Access.
During the term of the Agreement, provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer will be able to access the Product(s). As necessary, the Product(s) may prompt Customer for its login and password information and, if correct, will provide Customer access to the Product(s).
Unauthorized Duplication or Use.
Customer shall use reasonable efforts to prevent its employees or other third parties from making authorized copies of any content on the Product(s) or improperly using the Product(s) in violation of the Agreement or any federal, state, or local law or regulation. If Customer discovers any such problems, it will promptly notify Company and take reasonable actions to resolve the problem as soon as possible.
Restrictions.
Customer is not permitted to sublicense its rights or to allow any of its customers or other third parties to use or access the Product(s). Customer agrees not to reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, programming methods or Confidential Information (as defined herein) from the Product(s). Customer may not use the Intellectual Property of Company without prior written approval. Customer is not permitted to promote, suggest, or otherwise publicize that it has access to or utilizes data provided by Urban Science. Customer is not permitted to access the Product(s) for Dealer views other than those for which the Customer is employed, owns, or has Agency. Customer is not permitted to access the Product(s) to use on behalf of Ford Motor Company or Lincoln Motor Company and/or any of their associated dealers or dealer groups.
SUPPORT AND ENHANCEMENTS.
Technical Support.
Customer will be entitled access to customer support personnel by email or online support platform from 9:00 AM – 5:00 PM CST, Monday through Friday, excluding major US holidays, for reporting issues of all types associated with the Product(s).
Modifications and Enhancements.
Company shall utilize commercially reasonable steps to furnish Upgrades for the Product(s) if, as and when publicly released by Company during the term of the Agreement.
INTELLECTUAL PROPERTY; OWNERSHIP.
Subject to the licenses and rights granted herein, Customer acknowledges and agrees that the Product(s) and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. No right, title, or interest in or to the Product(s) is transferred to Customer, and all rights not expressly granted are reserved by the Company.
TERMINATION.
Termination by Customer.
Customer may stop using the Products and Services consistent with the terms of their subscription agreement. Termination of Customer account does not relieve Customer of any obligation to pay any and all outstanding amounts and fees in full.
Termination by Company.
If Company terminates these Terms and Conditions for reasons other than for cause, then Company will make reasonable effort to notify Customer at least 30 days prior to termination.
Effect of Termination.
Upon termination of the Agreement for any reason, Company shall discontinue access, license and use of the Product(s), Contractor will terminate Services, and Customer shall cease using the Product(s). Each Party shall promptly return Confidential Information to the Delivering Party or destroy such. Customer shall pay in full any and all outstanding amounts and fees incurred prior to termination or amounts otherwise owing. Sections (and all included sub-sections) 4, 5, 7, 8, 9, 10.4, and 10.6 shall survive termination of the Agreement.
REPRESENTATIONS AND WARRANTIES.
The Parties each represent and warrant that:
- It has the power and authority to enter into the Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which it is bound;
- It will comply with the laws, rules and regulations, as applicable, in connection with the conduct of its business, the use, license, and delivery of the Product(s); and
- Customer separately and additionally represents and warrants that it will not use the Product(s) in any manner prohibited by the Agreement, other third-party agreements, or in any way violate or tamper with the security of the Product(s).
DISCLAIMER.
CUSTOMER’S USE OF THE PRODUCT(S), ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE COMPANY IS AT CUSTOMER’S OWN RISK. THE PRODUCT(S), ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PRODUCT(S). WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PRODUCT(S), ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PRODUCT(S) OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT(S) WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Customer understands that it is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Company’s Product(s) for any reconstruction of any lost data.
CONFIDENTIALITY; SECURITY.
Confidential Information.
The parties understand and agree that in the performance of the Agreement each party may have access to private or confidential information of the other Party, including, but not limited to, trade secrets, marketing and business plans, technical information, client information, which is designated as confidential by the disclosing party in writing or which the receiving party knew or should have known was confidential, including all data and information obtained by Company that is related to, or provided by, Customer (collectively, “Confidential Information”).
Exceptions.
Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to a third person by the disclosing party without restriction on such third person, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under or in connection with the Agreement, whether received prior to or after the date of the Agreement, (iv) is disclosed to the receiving party by a third person having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (vi) is released from confidential treatment by written consent of the disclosing party, or (vii) is required to be disclosed by law, provided that, to the extent practicable under the circumstances, the receiving party gives sufficient notice to the disclosing party in advance of such disclosure to enable the disclosing party to seek legal recourse to prevent such disclosure.
Obligations of Confidentiality.
As between the parties, all Confidential Information shall remain the exclusive property of the disclosing or owning party, as applicable and each party shall use commercially reasonable efforts to protect the Confidential Information of the other party, including ensuring that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information.
LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE, OR INABILITY TO USE, THE PRODUCT(S), INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING SHALL NOT SERVE TO LIMIT, IN ANY WAY, (I) EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, AND (II) EITHER PARTY’S RIGHTS TO STATUTORY DAMAGES BASED ON INFRINGEMENT BY THE OTHER PARTY OF THE TRADEMARK OR COPYRIGHT RIGHTS OF THE AGGRIEVED PARTY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR CONDITIONS OR THE PRODUCT(S) MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
TERM OF AGREEMENT.
These Terms and Conditions shall remain in full force and effect for as long as Customer retains the right to access the EDGE Platform. The provisions of these Terms and Conditions related to confidentiality and your representations and warranties, indemnification obligations and payment obligations will survive any termination of these Terms and Conditions until such obligations are fully performed.
USE OF INFORMATION.
Company collects and stores information from and about Customers of the EDGE Platform for the purposes of verifying association with a dealership. Company does not disclose such information to third parties without the consent of the Customer.
MISCELLANEOUS.
Notices.
All notices, consents, approvals, requests, claims, demands and other communications hereunder (collectively, “Notices”) shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy, by national overnight courier service (such as, Federal Express, DHL, Airborne, UPS), or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the addresses on the signature page of the Agreement (or at such other address for a party as shall be specified in a Notice given in accordance with this Section).
Severability.
The Agreement shall be enforced to the fullest extent permitted by applicable law. If any provision of the Agreement is held to be invalid, illegal or incapable of being enforced to any extent, then such provision shall be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and while all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.
Assignment.
No Party shall assign or transfer the Agreement by operation of law or otherwise without the prior written consent of the other Party, except in connection with a change of control in which case such assignment shall not be required unless the change of control involves a direct competitor of the non-assigning Party. The Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties hereto.
Governing Law.
All disputes under the Agreement shall be governed by the law of the State of Delaware, without reference to its conflicts of law provisions, and shall be resolved exclusively in the state or federal courts in Nashville, Davidson County, Tennessee. Each Party agrees to accept services of process by mail, consent to the jurisdiction of such courts, and hereby waive any jurisdictional or venue defenses otherwise available to it. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Waiver.
Failure or delay by any party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition. All waivers hereunder shall be in writing and executed by an authorized representative on behalf of the party against whom such waiver is asserted. A waiver of a breach or a term under the Agreement shall not be deemed a waiver of any other or subsequent breach, or a waiver of any other term.
Headings.
Section headings are for the convenience of the parties and shall not affect the meaning, construction or interpretation of the text of the Agreement.
No Agency.
Nothing in the Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.
Controlling Language.
The Agreement is in English only, which language shall be controlling in all respects. All documents exchanged under the Agreement shall be in English.
Authority.
The person signing the Agreement on behalf of each Party below acknowledges that he or she is binding the entire company or entity and has the authority to do so.
