The IOL or Inventory Online software solutions (collectively, the ‘IOL Solutions‘), which are provided by HomeNet, Inc., a Delaware corporation (‘HomeNet‘), enable Dealers (as defined herein) to manage vehicle merchandizing by gathering inventory-related information from a variety of Dealer-specified sources and transforming that information into more consistent, engaging and consumer-friendly content for listing on Dealer-specified digital marketing destinations.
HomeNet’s IOL Solutions include IOL Lite, for multi-source, single-destination inventory merchandising; IOL Essentials, for multi-source, multi-destination inventory merchandising, leveraging HomeNet’s most commonly-used merchandising features; IOL Overdrive, which adds near real-time updates for vehicle-related information and automatic generation of vehicle-specific descriptions; IOL Ultimate, which further enables Dealers to differentiate notable new cars via Chrome’s expanded image gallery and Kelley Blue Book’s awards and accolades stamps; and IOL Ad Manager, for Dealers looking to post segments of vehicle inventory to specific digital marketing destinations.
By using or accessing any IOL Solution or by signing any Order Form (as defined herein) subscribing to any IOL Solution, the user or subscriber is agreeing to be bound by the terms and conditions set forth in this End User License Agreement (this ‘Agreement‘), both individually and on behalf of a specified dealership in the United States or Canada that sells automobiles under an agreement with a vehicle manufacturer (‘Dealer‘). Any use of or access to any IOL Solution by Dealer or its Authorized Users (as defined herein), and any use or display by Dealer or its Authorized Users of the HomeNet Site (as defined herein), shall be governed by this Agreement. This Agreement is a legally binding contract. Please read it carefully prior to using or accessing any IOL Solution or signing any Order Form.
1. Subscription Order(s).
Dealer has subscribed to the IOL Solution(s) identified on the applicable Order Form submitted to HomeNet, which Order Form may be executed manually in writing or in electronic or digital format in accordance with Section 24. For purposes of this Agreement, an ‘Order Form‘ means a HomeNet-approved ordering document that specifies Dealer’s purchase of a subscription or license to an IOL Solution. Subject to Dealer’s compliance with the terms of this Agreement, including payment of the applicable Setup Fee and Monthly Subscription Fees (each as defined herein), HomeNet will provide and make available to Dealer and its Authorized Users the IOL Solution(s) to which Dealer is subscribed, as set forth on the applicable Order Form(s). Each subscription or license to an IOL Solution is provided on a ‘per-rooftop’ basis, meaning that such subscription or license is specific to, and may only be used for and by, the single Dealer location identified on the applicable Order Form (the ‘Dealer Location‘). Any use of or access to the IOL Solution(s) by or for any dealership location other than the Dealer Location shall be in violation of this Agreement (irrespective of whether such dealership location may be owned or otherwise affiliated with Dealer).
2. License to IOL Solution(s).
HomeNet grants to Dealer and its Authorized Users a limited, non-exclusive and non-transferable right and license to use and access the IOL Solution(s) to which Dealer is subscribed and any Generated Content (as defined in Section 4), in each case solely for the purpose of managing Dealer’s online vehicle inventory and related data for the Dealer Location. The license granted in this Section 2 includes access to basic email and telephone technical support from HomeNet with respect to the IOL Solution(s). The license does not include any customization, programming or software or application development of any kind. Any such additional services must be agreed to by the parties in a separate written agreement. For purposes of this Agreement, an ‘Authorized User‘ means any officer or employee of Dealer that has been issued a username and password to access the IOL Solution(s) for and on behalf of Dealer, including any Dealer Admin User (as defined herein). Dealer acknowledges that certain third parties have granted HomeNet certain rights in connection with operation of, or integration of or with, an IOL Solution (a ‘Third Party Licensor‘). Dealer further acknowledges that the IOL Solution(s) may incorporate program code, data, files or other information as a direct result of HomeNet’s (or its Affiliate’s) integration with a source of vehicle inventory-related data, including Dealer’s management system, via an interface governed by an agreement between HomeNet and a Third Party Licensor (‘Integrated Information‘). Dealer shall be responsible and liable for all actions that may be taken by its Authorized Users in connection with their use of any IOL Solution (including Integrated Information), the HomeNet Site or any Generated Content, including any unauthorized use of any IOL Solution or Generated Content, or any other violation of this Agreement.
3. Access to IOL Solution(s).
Dealer and its Authorized Users may access the IOL Solution(s) to which Dealer is subscribed through the HomeNet website located at www.HomeNetAutomotive.com, or such successor or replacement website or URL as HomeNet may designate for such purpose (the ‘HomeNet Site‘). HomeNet will issue to Dealer a username and password to access the applicable IOL Solution(s) as the admin user of such IOL Solution(s) (the ‘Dealer Admin User‘). The Dealer Admin User shallhave the ability to issue usernames, passwords and other login credentials for the applicable IOL Solution(s) todesignated Authorized Users in accordance with this Agreement and such other limitations as HomeNet may establish from time to time. HomeNet may also issue additional usernames, passwords and other login credentials to designated Authorized Users from time to time. Any username, password or other login credential issued by Dealer (or any DealerAdmin User) or HomeNet to any Authorized User for use in accessing any IOL Solution (including Integrated Information) or the HomeNet Site is confidential and may not be shared with any third party. Any unauthorized use or disclosure of any Dealer or Authorized User account information shall be immediately reported to HomeNet in writing.
4. Nature of IOL Solution(s).
The IOL Solutions are intended to assist dealers in the management of their online vehicle inventories by integrating into existing sales processes and aggregating various data, including, but not limited to, Integrated Information, in order to generate digital vehicle display ads and other content that can be distributed to Dealer-designated third party websites and marketplaces. The IOL Solutions are not a referral or advisory service and do not recommend or endorse any particular transaction, sales strategy or other approach to managing vehicle inventory or Dealer’s business generally. The IOL Solutions are intended only to facilitate the process by which Dealer manages its online vehicle inventory. Neither HomeNet nor the IOL Solutions offer any advice regarding the value, costs, profit targets, quality or suitability of any particular transaction or sales strategy. Dealer is solely and exclusively responsible for ensuring the accuracy and integrity of any data or information that may be input or otherwise loaded into any IOL Solution or the HomeNet Site. Dealer also assumes sole and complete responsibility for any vehicle listings, posting, advertisements and other content and materials that may be generated by or through any IOL Solution or the HomeNet Site (‘Generated Content‘), and Dealer shall ensure the accuracy and completeness of all Generated Content (including any vehicle description and pricing information included or displayed in any Generated Content) prior to publishing or otherwise making such Generated Content available on the Internet or to any third party. HomeNet and Dealer agree to comply with all applicable legal obligations related to privacy, security, integrity, and confidentiality of data and will implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to protect against security threats and unauthorized access or use of the IOL Solutions (including Integrated Information). Notwithstanding anything to the contrary herein, Dealer alone is responsible for ensuring that Dealer and its Authorized Users and all Dealer Representatives (as defined herein) (a) comply with all federal, state (or, if applicable, provincial) and local laws, regulations, rules, ordinances and other decrees of any governmental authority, including any laws and regulations relating to privacy, security, integrity and confidentiality of Dealer’s customers’ information (‘Laws‘); (b) do not infringe or violate the Intellectual Property Rights (as defined herein) or any other rights of any third party; and (c) comply with all terms and conditions, terms of use and other agreements to which Dealer or any Authorized User or Dealer Representative is or may be subject (including, without limitation, the Craigslist Terms of Use and any other terms and conditions applicable to any online classified listings or other websites to which any Generated Content may be posted, uploaded or distributed), in each case in connection with their use of the IOL Solution(s) (including Integrated Information), the HomeNet Site and any Generated Content. Neither HomeNet nor any of the HomeNet Related Parties (as defined herein) shall have any responsibility or obligation under this Agreement or otherwise for any of the obligations described in clauses (a), (b) and (c) above.
5. Restrictions.
Neither Dealer nor any Authorized User shall: (a) use or access any IOL Solution (including any Integrated Information) or the HomeNet Site or use or publish any Generated Content in a manner or for any purpose not expressly authorized under Section 2 or 3; (b) sell, rent, lease, sublicense, transfer, lend, pledge, distribute or provide access to or otherwise make available to any third party any IOL Solution (including any Integrated Information) or any documentation or other information relating thereto; (c) copy, duplicate, reproduce, modify, translate, reverse engineer, decompile or disassemble any IOL Solution, or develop or create any derivative works of or relating to any IOL Solution or any underlying technology or intellectual property (including any Integrated Information) comprising any IOL Solution; (d) scrape or data-mine any IOL Solution, the HomeNet Site or the website of any Affiliate of HomeNet (including through the use of any robot, spider or other automated device); (e) frame or utilize framing techniques to enclose any portion of any IOL Solution or the HomeNet Site; (f) publish, transfer or export any Generated Content or other data (including any Integrated Information) from any IOL Solution or the HomeNet Site, other than by using the content export function provided as part of the applicable IOL Solution; (g) use or permit the use of any IOL Solutions (including any Integrated Information) for or in connection with any service bureau or outsourcing context; (h) violate any Law or any Intellectual Property Rights or other rights of any third party in connection with any use of or access to any IOL Solution (including any Integrated Information) or the HomeNet Site, or any use, display or publication of any Generated Content; (i) challenge, cooperate with any third party in challenging, or assist any third party in challenging any right or interest that HomeNet, its Affiliates, or its Third Party Licensors may have in any IOL Solution or in the HomeNet Site, or in any underlying technology, processes or intellectual property (including any Integrated Information) comprising any IOL Solution or the HomeNet Site, or in any HomeNet Mark; or (j) take any action, the intent or likely effect of which would be to cause harm to the business or reputation of HomeNet or its Affiliates.
6. Proprietary Rights.
Neither Dealer nor any Authorized User shall: (a) use or access any IOL Solution (including any Integrated Information) or the HomeNet Site or use or publish any Generated Content in a manner or for any purpose not expressly authorized under Section 3 or 4; (b) sell, rent, lease, sublicense, transfer, lend, pledge, distribute or provide access to or otherwise make available to any third party any IOL Solution (including any Integrated Information) or any documentation or other information relating thereto; (c) copy, duplicate, reproduce, modify, translate, reverse engineer, decompile or disassemble any IOL Solution, or develop or create any derivative works of or relating to any IOL Solution or any underlying technology or intellectual property (including any Integrated Information) comprising any IOL Solution; (d) scrape or data-mine any IOL Solution, the HomeNet Site or the website of any Affiliate of HomeNet (including through the use of any robot, spider or other automated device); (e) frame or utilize framing techniques to enclose any portion of any IOL Solution or the HomeNet Site; (f) publish, transfer or export any Generated Content or other data (including any Integrated Information) from any IOL Solution or the HomeNet Site, other than by using the content export function provided as part of the applicable IOL Solution; (g) use or permit the use of any IOL Solutions (including any Integrated Information) for or in connection with any service bureau or outsourcing context; (h) violate any Law or any Intellectual Property Rights or other rights of any third party in connection with any use of or access to any IOL Solution (including any Integrated Information) or the HomeNet Site, or any use, display or publication of any Generated Content; (i) challenge, cooperate with any third party in challenging, or assist any third party in challenging any right or interest that HomeNet, its Affiliates, or its Third Party Licensors may have in any IOL Solution or in the HomeNet Site, or in any underlying technology, processes or intellectual property (including any Integrated Information) comprising any IOL Solution or the HomeNet Site, or in any HomeNet Mark; or (j) take any action, the intent or likely effect of which would be to cause harm to the business or reputation of HomeNet or its Affiliates.
7. Feedback.
Any information, suggestions, feedback, ideas, comments and other materials that Dealer or any Authorized User may disclose or offer to HomeNet on or through the HomeNet Site in connection with or otherwise relating to any IOL Solution or any Generated Content, or in any underlying technology or intellectual property comprising any of the foregoing (collectively, ‘Feedback‘), are submitted without any restrictions or expectation of confidentiality. Dealer (on behalf of itself and its Authorized Users) hereby (a) assigns to HomeNet without compensation or further obligation of any kind, all rights and interests now known or hereafter existing to use, allow others to use, or assign the right to use, any Feedback, and (b) agrees that Feedback may be used by HomeNet or its Affiliates (or any successor or transferee of any of the foregoing) without restriction and for any purpose whatsoever, commercial or otherwise, including, without limitation, any reproduction, modification, adaptation, publication, transmission, public performance or display of any Feedback, or the creation of any derivative works of or relating to the Feedback. To the extent any use or implementation of any Feedback would require a license to any intellectual property of Dealer or any Authorized User, Dealer hereby grants to HomeNet (on behalf of itself and its Authorized Users) a perpetual, worldwide, non-exclusive, irrevocable, royalty free and fully paid-up and transferable right and license to use and display such intellectual property for the purpose of using or implementing any Feedback.
8. Dealer Inventory Data.
(a) Dealer agrees that HomeNet and its Affiliates may receive vehicle inventory and related data from Integrated Information sources, including, but not limited to, Dealer’s management system or similar platform used in connection with Dealer’s automotive business, which may include vehicle specifications, Vehicle Identification Number (‘VIN‘) data, vehicle pricing information, photographs, videos, vehicle accolades and awards from consumer resources, and other data and information relating to Dealer’s vehicle inventory (collectively, ‘Dealer Inventory Data‘). HomeNet and its Affiliates may use the Dealer Inventory Data for or in connection with (a) VIN decoding (as required for the applicable IOL Solutions); (b) the aggregation of data and information (including Dealer Inventory Data) for the purpose of assembling and developing Generated Content; and (c) publishing or otherwise distributing or disseminating Generated Content to Dealer-specified digital marketing destinations (free of any additional Generated Content-related charges by HomeNet to such destination entities), or otherwise in connection with providing any inventory management or other Dealer-directed services. Dealer shall promptly notify HomeNet in writing in the event that Dealer identified any errors or omissions with respect to any Dealer Inventory Data.
(b) Each party may disclose individual retail customer information, when required, pursuant to any federal or state law or regulation or rules or regulations of any governmental agency. HomeNet may be required by law, rule or regulation to make the following disclosure: NOTICE TO NORTH CAROLINA DEALERS: THIS END USER LICENSE AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.
9. Fees and Payments.
In exchange for the rights and licenses granted to Dealer in this Agreement, Dealer shall pay to HomeNet the one-time Setup fee (the ‘Setup Fee‘) and the recurring monthly subscription fee (the ‘Monthly Subscription Fee‘) for the IOL Solution(s) to which Dealer is subscribed, in each case as set forth in the applicable Order Form, provided that HomeNet shall have the right to adjust the Monthly Subscription Fee for any IOL Solution at any time after the Initial Subscription Term (or, in the event that the Initial Subscription Term is longer than one (1) year, at any time after the one (1) year anniversary of the date on which the Initial Subscription Term commenced). In the event Dealer is part of a larger group or consortium of commonly-owned dealerships (‘Dealer Group‘) through a parent entity or management company (‘Dealer Group Parent Company‘), Dealer may instruct HomeNet to: (i) receive payment of the Setup Fee and/or the Monthly Subscription Fee by the Dealer Group Parent Company, and (ii) direct the applicable invoices to the Dealer Group Parent Company. Notwithstanding the foregoing, Dealer shall remain liable for any Setup Fee, Monthly Subscription Fee or any other amount that the Dealer Group Parent Company may fail or refuse to pay on Dealer’s behalf. In the event of any dispute with respect to an invoice or other billing related issue, Dealer must notify HomeNet in writing of such dispute or issue within ninety (90) days of the date set forth on the applicable invoice or billing statement. Any such notice must include a reasonably detailed description of the nature and basis of the dispute or issue. Notwithstanding the foregoing, in the event of any dispute by Dealer with respect to any invoice or other billing related issue, Dealer shall in no event withhold or refuse to remit any payment to HomeNet, and all invoiced amounts shall be remitted to HomeNet in accordance with this Section 9, irrespective of any dispute or issue that may have been raised or initiated by Dealer. No disputes or issues will be addressed or considered by HomeNet while any outstanding fees or other amounts are owed by Dealer. Upon the resolution of any dispute with respect to any invoice or other billing related issue, if Dealer is entitled to a refund of any fees or other amounts paid to HomeNet, HomeNet shall credit Dealer’s account for the amount of such refund within thirty (30) days of the final resolution of such dispute or issue. Except as set forth in the immediately foregoing sentence, the Setup Fees and Monthly Subscription Fees are non-refundable. Dealer shall be solely responsible for any sales, use or other taxes or assessments made by any governmental or taxing authority in connection with Dealer’s use of or access to any IOL Solution or the HomeNet Site, or any use, display or publication of the Generated Content.
10. Initial Subscription Term.
This Agreement shall commence on the date on which Dealer or any Authorized User first uses or accesses any IOL Solution or signs an Order Form (whichever occurs first), and unless Dealer’s subscription(s) to the IOL Solution(s) are earlier terminated in accordance with Section 11, shall continue thereafter for the duration of the Initial Subscription Term, after which this Agreement and Dealer’s subscription to the applicable IOL Solution(s) shall automatically renew on a month-to-month basis until terminated or cancelled by a party pursuant to Section 11. For purposes of this Agreement, the ‘Initial Subscription Term‘ means, with respect to any subscription to an IOL Solution, the initial subscription term specified in the Order Form with respect to such subscription, or, if no initial subscription term is specified in the Order Form, a term of one (1) year, commencing on the date on which Dealer or any Authorized User first uses or accesses the applicable IOL Solution or signs the Order Form (whichever occurs first).
11. Termination/Cancellation.
This Agreement may be terminated as follows: (a) by either party, immediately, upon any material breach by the other party of this Agreement which has not been cured within ten (10) days after providing written notice of such breach to the breaching party; (b) by HomeNet, immediately, upon the filing of any bankruptcy, insolvency or other similar petition or filing by, on behalf of, or against Dealer or its parent company; or (c) by HomeNet, immediately, in the event that it believes that Dealer or any Authorized User has or is violating any of the restrictions or other agreements set forth in Section 2, 3, 5, 8, 13 or 15. Additionally, Dealer acknowledges that HomeNet shall have the right at any time to cease offering any IOL Solution to Dealer or to modify or change any IOL Solution or any feature or functionality thereof (including, without limitation, in any case where HomeNet is no longer able to provide Integrated Information, or where HomeNet believes that an IOL Solution or any feature or functionality thereof may infringe or otherwise violate the Intellectual Property Rights of any third party, or any Law), in each case without notice to Dealer, and HomeNet may also elect to cease doing business with Dealer at any time, with or without cause, and may cancel or terminate any subscription or license to the IOL Solutions in connection therewith by providing notice to Dealer of such cancellation or termination. Dealer may terminate or cancel its subscription to the IOL Solution(s) at any time during the Initial Subscription Term or thereafter by providing at least thirty (30) days’ prior written notice to HomeNet in accordance with this Section 11. Any notice of termination or cancellation by Dealer must be sent to sales@homenetautomotive.com. HomeNet will confirm its receipt of any proper notice of termination or cancellation within five (5) business days of the date on which such notice is received by HomeNet at the email address listed above. Any proper termination or cancellation by Dealer of its subscription to the IOL Solution(s) will be processed by HomeNet by no later than the end of the applicable monthly billing cycle during which the effective date of Dealer’s termination or cancellation falls, unless the effective date of such termination or cancellation is on or after the 21st day of the month, in which case such termination or cancellation will be processed by HomeNet by the end of Dealer’s next billing cycle. No termination or cancellation of any IOL Solution shall be effective unless HomeNet has confirmed such termination or cancellation as provided for above. There will be no prorations or refunds of any Setup Fee or Monthly Subscription Fees.
12. Effect of Termination.
Upon any termination or expiration of this Agreement, all rights, obligations and licenses granted to Dealer and its Authorized Users hereunder shall immediately and automatically terminate, and any unpaid Setup Fee, Monthly Subscription Fees or other amounts due hereunder shall be immediately due and payable. In addition to the foregoing, Dealer shall (i) immediately discontinue any access or use of any IOL Solution (including any Integrated Information); (ii) promptly pay all accrued and outstanding amounts due under this Agreement; (iii) delete Confidential Information of HomeNet or its Affiliates from computer storage or any other media including, but not limited to, online and off-line libraries; and (iv) return to HomeNet or, at the HomeNet’s option, destroy, all physical copies of any Confidential Information of HomeNet or its Affiliates. The provisions of Sections 4, 5, 6, 7, 8(b), 9, 12 through 18, 20, 21, 22, 24, 25 and 26 shall survive any termination or expiration of this Agreement.
13. Representations and Warranties.
Upon any termination or expiration of this Agreement, all rights, obligations and licenses granted to Dealer and its Authorized Users hereunder shall immediately and automatically terminate, and any unpaid Set-up Fee, Monthly Subscription Fees or other amounts due hereunder shall be immediately due and payable. In addition to the foregoing, Dealer shall (i) immediately discontinue any access or use of any IOL Solution (including any Integrated Information); (ii) promptly pay all accrued and outstanding amounts due under this Agreement; (iii) delete Confidential Information of HomeNet or its Affiliates from computer storage or any other media including, but not limited to, online and off-line libraries; and (iv) return to HomeNet or, at the HomeNet’s option, destroy, all physical copies of any Confidential Information of HomeNet or its Affiliates. The provisions of Sections 2, 5, 6, 7, 8, 9(b), 10, 13 through 19, 21, 22, 23, 25, 26 and 27 shall survive any termination or expiration of this Agreement.
14. Indemnification.
Dealer shall, at its expense, defend, indemnify and hold harmless HomeNet and its Affiliates, and its and their respective Third Party Licensors and data and service providers, and the officers, employees, representatives and agents of each of the foregoing (collectively, the ‘HomeNet Related Parties‘), from and against any and all claims, judgments, losses, damages, demands, payments, fines, costs, expenses (including reasonable attorneys’ fees and court costs), liabilities and recoveries of any nature or description incurred by any HomeNet Related Party, in each case to the extent arising from or in any way relating to (a) any breach by Dealer or any of its officers, employees, representatives or agents (collectively, the ‘Dealer Representatives‘), or any breach by any Authorized User, of any representation, warranty, covenant or other provision of this Agreement; (b) any use of or access to any IOL Solution or the HomeNet Site; (c) the use or publication of any Generated Content; or (d) any claim by a retail customer of Dealer or any other purchaser of a Dealer vehicle.
15. Confidential Information.
(a) Dealer agrees not to disclose (or allow to be disclosed by any Authorized User or Dealer Representative), and not to otherwise use or allow to be used other than as set forth in this Agreement, any Confidential Information of HomeNet, its Affiliates, or Third Party Licensors. Dealer shall use a commercially reasonable degree of care in maintaining the confidentiality of any Confidential Information. Dealer may disclose Confidential Information only to those of its employees that have a reasonable need to access the Confidential Information in connection with Dealer’s performance under this Agreement; provided, however, that each employee of Dealer to whom any Confidential Information is being disclosed shall, prior to any such disclosure, be subject to written confidentiality restrictions with respect to the Confidential Information that are at least as restrictive as those obligations and restrictions set forth in this Section 15. Dealer shall be fully responsible and liable for any violation of this Section 15 by any Authorized User or Dealer Representative and any other person to whom Dealer has provided or otherwise made available any Confidential Information. (b) For purposes of this Agreement, ‘Confidential Information‘ means all information and materials that are provided or otherwise disclosed by or on behalf of HomeNet or its Affiliates that are either (i) designated as ‘Confidential’ or ‘Proprietary’ by HomeNet or its Affiliates, or (ii) in any way related to any IOL Solution or any aspect of the business or operations of HomeNet or its Affiliates, including, without limitation, any Integrated Information and any information or materials relating to the operations, customers, contractors, distributors, software, technology, products, services or marketing plans of HomeNet or its Affiliates. Notwithstanding the foregoing, ‘Confidential Information’ shall not include any information or materials that (x) are or become publicly known or available other than as a result of any wrongful act by Dealer or any of its Affiliates or any Authorized User or Dealer Representative, including any violation of this Agreement, (y) are known to or in the possession of Dealer prior to their disclosure by HomeNet or its Affiliates, as evidenced by written documents in existence prior to any such disclosure, or (z) are or become available to Dealer from a third party not bound by any confidentiality or other obligations that would prohibit such disclosure.
16. Remedies.
Dealer acknowledges and agrees that the wrongful disclosure of any Confidential Information or any unauthorized use of any IOL Solution or Generated Content would cause irreparable injury to HomeNet and its applicable Affiliates and Third Party Licensors, and that remedies other than injunctive relief would be inadequate. Accordingly, HomeNet shall have the right to obtain equitable and other injunctive relief to prevent any wrongful disclosure of any Confidential Information or any unauthorized use of any IOL Solution (including any Integrated Information) or Generated Content (in each case without the posting of any bond or similar security), as well as such damages and other relief to which HomeNet, its Affiliates, or its Third Party Licensors may be entitled under this Agreement or pursuant to any Law. Third Party Licensors shall be considered third party beneficiaries of this Agreement having the right to enforce its rights hereunder directly against Dealer.
17. DISCLAIMER.
NEITHER HOMENET NOR ANY HOMENET RELATED PARTY MAKES ANY REPRESENTATION OR WARRANTY TO DEALER OR ANY OTHER PERSON WITH RESPECT TO ANY IOL SOLUTION (INCLUDING ANY INTEGRATED INFORMATION), THE HOMENET SITE OR ANY GENERATED CONTENT, EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF TITLE, SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY TYPE OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HOMENET MAKES NO REPRESENTATION OR WARRANTY THAT ANY IOL SOLUTION (INCLUDING ANY INTEGRATED INFORMATION) OR THE HOMENET SITE WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION OR IN ACCORDANCE WITH ANY SPECIFICATIONS OR DOCUMENTATION.
18. LIMITATION OF LIABILITY.
HOMENET AND THE HOMENET RELATED PARTIES SHALL IN NO EVENT BE LIABLE TO DEALER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, MULTIPLE, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM OR ANY USE OF THE IOL SOLUTION(S) (INCLUDING ANY INTEGRATED INFORMATION), THE HOMENET SITE OR ANY GENERATED CONTENT, EVEN IF HOMENET OR THE APPLICABLE HOMENET RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, THE AGGREGATE LIABILITY OF HOMENET AND THE HOMENET RELATED PARTIES UNDER THIS AGREEMENT SHALL BE EXPRESSLY LIMITED TO AN AMOUNT EQUAL TO THREE (3) TIMES THE MONTHLY SUBSCRIPTION FEE FOR THE IOL SOLUTION(S) TO WHICH DEALER IS SUBSCRIBED.
19. Mobile Application(s).
(a)Certain of the IOL Solutions may from time to time be made available through a mobile or tablet website or application (each, a ‘Mobile Application‘), which may allow Dealer and its Authorized Users to use and access the applicable IOL Solution(s) (or certain features or functionality thereof) via a mobile or tablet device. To use any Mobile Application, the applicable Authorized User must have a mobile or tablet device compatible with such Mobile Application. HomeNet does not warrant that any Mobile Application will be compatible with the mobile or tablet device of any Authorized User. Any portion of any IOL Solution made available to Dealer or its Authorized Users in or through a Mobile Application shall, for all purposes, be included in the definition of the ‘IOL Solutions’ hereunder, and any vehicle listings, postings, advertisements or other content or materials that may be generated by or through the use of any IOL Solution on any Mobile Application shall, for all purposes, be included in the definition of ‘Generated Content’ hereunder, and, in each case, the use of and access to the IOL Solution(s) in or through a Mobile Application and the use of any Generated Content in connection therewith shall be governed by, and subject to, this Agreement.
(b)Dealer acknowledges that HomeNet may from time to time issue upgraded versions of any Mobile Application, and, in certain cases, HomeNet may automatically and remotely upgrade the version of such Mobile Application that Dealer and its Authorized Users are using on their respective mobile devices. Dealer consents (on behalf of itself and its Authorized Users) to any such automatic and remote upgrading on the mobile devices of Dealer and its Authorized Users, and agrees (on behalf of itself and its Authorized Users) that this Agreement will apply to all such upgrades. Any third party code that may be incorporated into any Mobile Application is covered by the applicable open source or third party end user license agreement, if any, authorizing the use of such code. HomeNet and Third Party Licensors shall retain all right, title and interest in and to any Mobile Application (and any copies thereof). Dealer and its Authorized Users shall comply with all Laws in connection with its use of any Mobile Application. Additional fees and charges may apply to any Mobile Application access provided by HomeNet with respect to any IOL Solution. Standard carrier data charges may also apply to any access to or use of any Mobile Application by Dealer or its Authorized Users.
20. Usage Data.
Certain data and information may be generated and collected by HomeNet in connection with Dealer’s use of the IOL Solution(s), which may include vehicle or inventory data, information relating to vehicle sales or other transactions, usage statistics or analytics and other data and information gathered, generated or received by HomeNet in connection with Dealer’s use of the IOL Solution(s) (‘Usage Data‘). Notwithstanding the foregoing, the Usage Data will not include any personally identifying information of any retail customer of Dealer. Dealer acknowledges and agrees that HomeNet and its Affiliates shall have the right to make use of such Usage Data for its internal business purposes, provided that HomeNet shall not disclose to any third party (other than its Affiliates and its and their respective employees and representatives) any Usage Data, except as provided for in this Agreement or in any Order Form, unless such Usage Data has been aggregated with the Usage Data of other dealer subscribers so as not to identify Dealer as the source or subject of such Usage Data.
21. ARBITRATION AND CLASS WAIVER.
(A)DEALER AGREES TO ARBITRATE ANY DISPUTE OR CLAIM THAT IT MAY HAVE WITH HOMENET THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT OR ANY ORDER FORM OR DEALER’s USE OF ANY IOL SOLUTION OR THE HOMENET SITE. ARBITRATION CONDUCTED HEREUNDER SHALL BE FINAL AND BINDING. THIS ARBITRATION PROVISION MEANS THAT DEALER’s CLAIMS AGAINST HOMENET WILL BE RESOLVED THROUGH ARBITRATION RATHER THAN LITIGATION IN COURT. DEALER ACKNOWLEDGES THAT HOMENET MAY (BUT SHALL NOT BE REQUIRED TO) SUBMIT TO ARBITRATION ANY DISPUTE OR CLAIM THAT IT MAY HAVE AGAINST DEALER, WITH ANY SUCH ARBITRATION BEING GOVERNED BY THE PROVISIONS OF THIS SECTION 21.
(B)DEALER MAY OPT-OUT OF THIS ARBITRATION CLAUSE AND DOING SO WILL NOT IN ANY WAY PREJUDICE OR AFFECT DEALER’s BUSINESS OR RELATIONSHIP WITH HOMENET. TO EXERCISE THIS OPT-OUT RIGHT, DEALER MUST PROVIDE WRITTEN NOTICE OF ITS ELECTION TO OPT-OUT TO HOMENET AT THE ADDRESS SET FORTH IN SECTION 22 BY NO LATER THAN TEN (10) DAYS AFTER THE DATE ON WHICH DEALER FIRST USES OR ACCESSES ANY IOL SOLUTION OR SIGNS ANY ORDER FORM (WHICHEVER OCCURS FIRST). THE PROCEDURE SET FORTH IN THIS SECTION 21(B) IS THE ONLY WAY TO OPT-OUT OF THIS ARBITRATION CLAUSE, AND ANY ATTEMPTS TO OPT-OUT AFTER THE DEADLINE SET FORTH HEREIN WILL BE INEFFECTIVE.
(C)ANY ARBITRATION PROCEEDING UNDER THIS SECTION 21 WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS OR REPRESENTATIVE PROCEEDINGS OF ANY KIND ARE NOT PERMITTED AND DEALER EXPRESSLY WAIVES ITS ABILITY TO PARTICIPATE IN A CLASS OR REPRESENTATIVE PROCEEDING AGAINST HOMENET OR ITS AFFILIATES. TO THE EXTENT THAT DEALER OPTS-OUT OF THE ARBITRATION CLAUSE BY FOLLOWING THE PROCEDURE SET FORTH IN SECTION 21(B), OR IF THE ARBITRATION CLAUSE IS FOUND INAPPLICABLE TO DEALER’s DISPUTE WITH HOMENET, THIS CLASS WAIVER WILL CONTINUE TO APPLY IN LITIGATION. DEALER AGREES THAT THIS CLASS WAIVER IS AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN DEALER AND HOMENET AND THAT THIS CLASS WAIVER MAY NOT BE SEVERED. IN THE EVENT THAT THIS CLASS WAIVER IS DEEMED INVALID OR UNENFORCEABLE, THEN THE ENTIRE AGREEMENT TO ARBITRATE IN THIS SECTION 21 WILL BE NULL AND VOID.
(D)ANY DISPUTE OR CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 21 SHALL BE SUBMITTED TO BINDING ARBITRATION ADMINISTERED BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (‘JAMS‘) PURSUANT TO ITS STREAMLINED ARBITRATION RULES AND PROCEDURES AS IN EFFECT AT THE TIME OF THE SUBMISSION OF SUCH DISPUTE OR CLAIM (THE ‘JAMS STREAMLINED RULES‘). THE DISPUTES AND CLAIMS SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 21 WILL BE RESOLVED BY A SINGLE ARBITRATOR SELECTED PURSUANT TO THE JAMS STREAMLINED RULES. THE ARBITRATOR SHALL BE BOUND BY AND SHALL STRICTLY ENFORCE THIS AGREEMENT AND ANY OTHER APPLICABLE AGREEMENT BETWEEN DEALER AND HOMENET, AND MAY NOT LIMIT, EXPAND OR OTHERWISE MODIFY ANY OF THE PROVISIONS OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN DEALER AND HOMENET. THE ARBITRATOR MAY AWARD ANY RELIEF THAT A COURT OF LAW COULD, APPLYING THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF IF PERMITTED BY LAW ‘ BUT THE INJUNCTIVE RELIEF AWARDED BY THE ARBITRATOR MAY NOT EXTEND BEYOND THE DEALINGS BETWEEN DEALER AND HOMENET. THE LAWS OF THE STATE OF GEORGIA WILL APPLY TO ANY CLAIMS OR DISPUTES BETWEEN THE PARTIES. ANY ARBITRATION WILL BE HELD IN ATLANTA, GEORGIA, UNLESS OTHERWISE AGREED UPON BY THE PARTIES IN WRITING. EACH PARTY WILL BEAR ITS OWN EXPENSES IN THE ARBITRATION AND WILL SHARE EQUALLY THE COSTS OF THE ARBITRATION; PROVIDED, HOWEVER, THAT THE ARBITRATOR SHALL AWARD HOMENET ANY COSTS AND FEES TO WHICH IT MAY BE ENTITLED UNDER SECTION 14 IN CONNECTION WITH ANY INDEMNIFICATION CLAIM, AND SHALL ALSO AWARD HOMENET ANY ATTORNEYS’ FEES AND OTHER COSTS AND EXPENSES TO WHICH IT MAY BE ENTITLED PURSUANT TO SECTION 25.
(E)DEALER AGREES THAT ITS TRANSACTIONS WITH HOMENET EVIDENCE TRANSACTIONS IN INTERSTATE COMMERCE, AND THUS THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS SECTION 21 (NOTWITHSTANDING THE APPLICATION OF GEORGIA LAW TO ANY UNDERLYING CLAIMS AS PROVIDED FOR IN CLAUSE (D) ABOVE).
22. Notices.
All notices, demands and requests required or permitted to be given by Dealer under this Agreement or any Order Form shall be (a) in writing; (b) sent by commercial delivery service or certified mail, return receipt requested; (c) deemed to have been given on the date set forth in the records of the delivery service or on the return receipt; and (d) addressed to HomeNet at c/o Cox Automotive, Inc., 6205 Peachtree Dunwoody Road, Atlanta, Georgia 30328 (Attention: Legal Department).
23. Modifications and Updates.
HomeNet may modify or update this Agreement from time to time. By continuing to use or access any IOL Solution following the posting of such modifications or updates, Dealer agrees to be bound by this Agreement, as it may be modified and updated from time to time.
24. Electronic Signatures.
Dealer acknowledges and agrees that this Agreement and any Order Form may be executed by HomeNet by affixing to this Agreement or such Order Form an electronic or digital signature, which shall for all purposes be deemed effective to constitute the valid signature of HomeNet. HomeNet, in its sole discretion, may also permit Dealer to execute this Agreement or any Order Form by affixing to this Agreement or such Order Form an electronic or digital signature, which shall for all purposes be deemed effective to constitute the valid signature of Dealer. Any electronic or digital signature affixed to this Agreement or any Order Form (in the case of any Dealer signature, that is permitted by HomeNet) shall be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act, and any other similar Laws relating to the validity or enforceability of electronic or digital signatures.
25. Audit Right.
To assist HomeNet in verifying Dealer’s compliance with the terms and conditions set forth in this Agreement, Dealer will, upon reasonable request by HomeNet and at all reasonable times during the Term and for three (3) years thereafter: (a) make available to HomeNet or its authorized representatives for inspection and review such books, records and other materials of Dealer as are necessary for HomeNet to verify Dealer’s compliance with the terms and conditions described above (in each case to HomeNet’s reasonable satisfaction); (b) give HomeNet and its authorized representatives reasonable access, during regular business hours, to Dealer’s employees and other representatives in connection with such audit; and (c) provide such computer and Internet access, office space, telephone and photocopying and service as may be necessary or desirable for HomeNet and its authorized representatives to conduct such audit. The costs of the audit will be borne by HomeNet unless the audit reveals that Dealer is in material breach of this Agreement, in which case (i) HomeNet may terminate this Agreement immediately, (ii) Dealer will pay HomeNet on demand for any costs incurred in connection with the audit, and (iii) HomeNet may pursue any other rights or remedies available under this Agreement, at law, in equity or otherwise.
26. Miscellaneous.
This Agreement and any Order Form shall be governed and construed in accordance with the internal Laws of the State of Georgia (except to the limited extent set forth in Section 21(E)), without regard for its conflict of Law principles. Any action to enforce any arbitration proceeding, and any other claim or dispute by Dealer, to the extent arising under or relating to this Agreement or any Order Form or the use of any IOL Solution and not otherwise subject to mandatory arbitration pursuant to Section 21, shall be filed exclusively in a state or federal court located in Fulton County, Georgia, and Dealer consents to such forum and waives any objection to the laying of venue in such forum. Dealer shall be responsible for and shall reimburse the HomeNet Related Parties for any legal fees and other costs incurred by or on behalf of HomeNet or its Affiliates in connection with any breach by Dealer or any Authorized User or Dealer Representative of this Agreement, or any action commenced by or on behalf of HomeNet to enforce any term or provision of this Agreement. Dealer may not assign this Agreement or any subscription or other rights or obligations hereunder (whether by operation of law, by merger or otherwise), without the prior written consent of HomeNet. This Agreement shall not be interpreted strictly against any party by virtue of such party’s role in preparing or drafting this Agreement. If any provision of this Agreement shall be invalid or prohibited by Law, such invalidity or prohibition shall be construed as if such invalid or prohibited provision had not been included herein and such invalidity or prohibition shall not affect the remainder of such provision or any other provision of this Agreement. HomeNet shall not be liable for the failure to perform any obligation under this Agreement to the extent such failure is attributable to any act of God or other condition or event beyond its reasonable control. This Agreement represents the entire agreement of the parties with respect to Dealer’s use of the IOL Solution(s) and the other subject matter hereof, and supersedes all prior agreements and understandings between the parties with respect to such matters, whether oral or written. Except for the specific rights and remedies granted to a Third Party Licensor pursuant to the last sentence of Section 16, this Agreement is not intended to confer upon any Authorized User or any other person or entity (other than HomeNet and Dealer) any rights or remedies hereunder. No waiver by HomeNet of any breach of this Agreement shall be deemed a waiver of any other or subsequent breach.
End User License Agreement
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