Adpearance Holdings, LLC, a Delaware limited liability company dba Foureyes® and/or its subsidiaries or affiliates (“Service Provider”) has agreed to provide certain services to the Dealer identified in the Services Agreement pursuant to the terms of this Foureyes® Standard Terms and Conditions (“Agreement”) and as described in the Services Agreement (“Services”).
Foureyes® helps a dealer optimize the sales process – from online advertisement, to website visit, to sales team activity (see Foureyes® Product Description). In order to provide this visibility, Foureyes® requires the following:
CRM Access. Dealer agrees to provide Service Provider a CRM login and authorize Service Provider as an agent for the limited purpose of running/exporting CRM reports and to assist with lead management and sales process optimization. Service Provider will not share Dealer’s CRM data with any third parties without Dealer’s consent except as described in this Agreement or unless required by applicable laws, rules, or regulations. Service Provider shall have no liability to Dealer or to any other third party in connection with Service Provider’s services to Dealer and CRM use hereunder so long as such use is in accordance with the terms of this Agreement. Dealer represents and warrants that any personal information (as defined by applicable privacy laws) contained in Dealer’s CRM has been collected by Dealer and is disclosed to Service Provider in accordance with all applicable privacy laws.
Call Tracking. Services may enable Dealer to make use of and/or access certain toll-free and local tracking numbers (“Numbers”), as well as associated call analytics services and associated software (collectively, “Call Tracking Services”). As between Service Provider and Dealer, Dealer acknowledges and agrees that Dealer is solely responsible for: (i) its use of any consumer data collected or maintained by Dealer with respect to the Call Tracking Services and for implementing appropriate policies and procedures with respect to the privacy and security of such consumer data; (ii) (a) advising all callers to the Numbers (in addition to all receivers of outbound calls using the Call Tracking Services) that calls may be recorded, transcribed, monitored, analyzed and/or archived; and (b) ensuring that the content of any recorded call notification(s) and the implementation thereof is compliant with all applicable local, state, and federal laws and regulations; (iii) providing any notices to callers and for obtaining any consents and/or permissions from call receivers as required by applicable local, state, and federal laws and regulations; (iv) using and/or accessing the Call Tracking Services in strict compliance with all applicable local, state, and federal laws and regulations; and (v) the content of any calls, SMS or text messages, or other communications sent using the Call Tracking Services. All use of the Call Tracking Services is at Dealer’s sole risk.
For applicable Services, Call Tracking Services for up to 1,000 phone calls per month is included in the monthly fees shown in the Services Agreement. Should Dealer’s tracked phone calls exceed the included 1,000 calls per month, Client will be automatically billed for a volume add-on of $100 for each additional group of 250 tracked calls.
Sales Process Optimization. Foureyes® analyzes data to improve the Foureyes® products and, in aggregate, to provide relevant industry benchmarks and trends. Service Provider may, but is not required, to maintain a copy of all raw data that it collects in connection with Services and/or Dealer’s use of the Services. Service Provider may retain such data for purposes of managing is relationship with Dealer, providing information to improve the Services, for development of new services and products, for marketing products and services to Dealer, and for other purposes related to the management of Service Provider’s relationship with Dealer. Service Provider may retain the data for its own purposes and use such data with other data in an aggregate and anonymous manner to derive statistical and performance information related to the operation of Service Provider and Service Provider may disclose aggregate trends and/or findings to third parties. Dealer grants Service Provider and its subsidiaries and affiliates a fully paid perpetual, worldwide, non-exclusive, freely transferable and sublicensable license to the data for these uses.
Data Use. Dealer acknowledges and agrees that Dealer shall be responsible for all access to and use of any data provided by Service Provider directly or indirectly by or through the Dealer’s systems or its or its authorized users’ access credentials, with or without Dealer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Dealer shall not, and shall not permit any other person to, access or use any data except as expressly permitted by this Agreement and, in the case of third-party materials, the applicable third-party license agreement. Dealer will use its reasonable best efforts to prevent any unauthorized use of the Foureyes® products and all data and will immediately notify Service Provider in writing of any unauthorized use that comes to Dealer’s attention. If there is unauthorized use by anyone who obtained access to the Foureyes® products, Dealer will take all steps reasonably necessary to terminate the unauthorized use. Dealer will reasonably cooperate and assist with any actions that Service Provider takes to prevent or terminate unauthorized use of the Foureyes® products and data. If Dealer becomes aware of any actual or threatened activity prohibited by this paragraph, Dealer shall, and shall cause its authorized users to, immediately (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Foureyes® products or the data and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access) and (b) notify Service Provider of any such actual or threatened act. Dealer acknowledges that Dealer is responsible for reporting any and all operational failures, incidents, problems, concerns and complaints, to Service Provider, and all such reports shall be sent via email to [email protected].
Service Provider will retain the customer information throughout the term of the Agreement, including any extensions or renewals, based on Dealer’s direction that they have a legitimate business purpose for retention of such data. Service Provider will permanently dispose of customer information collected pursuant to the terms of this Agreement following the termination of this Agreement unless otherwise required to retain it to fulfill another contractual obligation or as may be required by law or court order.
Data Privacy. As between Dealer and Service Provider, Dealer will be solely responsible for, and Service Provider will have no liability in connection with, Dealer’s compliance with applicable local, state, and federal laws and regulations relating to the creation, collection, use, maintenance, and/or processing of personal data, including without limitation, the California Consumer Privacy Act and any implementing regulations therein (together, the “CCPA”), the Fair Credit Reporting Act (“FCRA”), the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM”), all laws related to online privacy policies, and the Telephone Consumer Protection Act (“TCPA”).
Intellectual Property. The parties acquire no rights to any intellectual property of the other party owned, created, or licensed by the other party by virtue of this Agreement, disclosure, and/or use by the other party. Service Provider retains all rights of ownership in Foureyes® and all related products and may terminate Dealer’s use of Foureyes® at any time.
DISCLAIMER. SERVICE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE OR USAGE OF TRADE RELATED TO SERVICE PROVIDER, FOUREYES® AND/OR THIS AGREEMENT. DEALER UNDERSTANDS THE USE OF THE PRODUCTS IS AT DEALER’S OWN RISK AND IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE PARTIES BE LIABLE TO EACH OTHER FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA, INFORMATION, OR CONTENT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF FOUREYES® AND/OR THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND UNDER ANY THEORY LEGAL OR EQUITABLE THEORY. SERVICE PROVIDER’S AGGREGATE LIABILITY TO DEALER ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR DEALER’S USE OF FOUREYES® UNDER ANY THEORY OF LIABILITY OR RECOVERY SHALL NOT EXCEED THE AMOUNT OF CONSIDERATION PAID BY DEALER TO SERVICE PROVIDER DURING THE PREVIOUS 30-DAY PERIOD.