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 Auto Group identified in the Services Agreement pursuant to the terms of this Foureyes® UDP Terms (“Agreement”) and as described in the Services Agreement (“Services”). CRM Rights and Data Rights. Service Provider is providing the Foureyes Unified Data Platform™ (the “UDP”) to the auto level group described in the Services Agreement (the “Auto Group”). Auto Group, on its own behalf and on behalf of each of the respective dealers described in Table 2 (individually and collectively the “Dealer(s)”), hereby agrees as follows:
Data. To power the UDP, certain raw data, such as sales and marketing data, is collected by Service Provider’s proprietary Foureyes platform through an existing Foureyes dealer-level module or, if applicable, through Foureyes tracking systems (the “Raw Data”). Using Service Provider’s proprietary Foureyes technology, an interpretive logic layer is applied to the Raw Data (the “Processed Data”). Service Provider may utilize the Raw Data and/or Processed Data in aggregate with other data sources and de-identify the data to remove any personal data of Dealer’s customers or other Dealer identifying data (the “Anonymized Data”). The Anonymized Data will not contain any personally identifiable information of any Dealer’s customers. “Raw Data”, “Processed Data”, and “Anonymized Data” are hereby collectively referred to herein as “Data.”
Auto Group acknowledges and agrees, on its own behalf and on behalf each Dealer, that Auto Group and/or the Dealer is solely responsible for, and that Service Provider shall have no liability to Auto Group or any Dealer in connection with, the accuracy, sufficiency, quality, and/or legality of the Data. Service Provider does not and will not assess or verify the accuracy, sufficiency, quality, or legality of the Data.
CRM Access. Auto Group, on its own behalf and on behalf of each Dealer, agrees to provide Service Provider a CRM login and hereby authorizes Service Provider to access the Dealer’s CRM as an agent of the Dealer for the purpose of collecting Raw Data. Service Provider shall have no liability to any Dealer or to any third party in connection with Service Provider’s provision of the Services hereunder (including Service Provider’s CRM access) so long as such use is in accordance with the terms of this Agreement. Auto Group, on its own behalf and on behalf of each 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.
Data Use. Service Provider will not share or disclose any Data with or to any third parties without the Auto Group’s and/or the Dealer’s consent except: (i) as described in this Agreement; (ii) unless required by applicable laws, rules, or regulations; or (iii) as permitted in the Foureyes Privacy Terms (discussed below).
Notwithstanding the preceding paragraph, Auto Group authorizes Service Provider, on its own behalf and on behalf of each Dealer, to: (i) provide the Data to the Auto Group; (ii) provide the Anonymized Data to each Dealer’s applicable third party vendors (the “Approved Vendors”); (iii) provide the Raw Data and Processed Data to each Dealer’s Approved Vendors with the Auto Group’s consent; and (iv) provide an individual Dealer’s Data to the applicable Dealer to which the Data relates.
Where Service Provider is sharing or disclosing Data to Auto Group or to a Dealer’s Approved Vendors, any such sharing or disclosure will be for the Auto Group or the Approved Vendor’s internal business use, and Auto Group and each Approved Vendor will agree to use appropriate administrative, physical and technical safeguards to ensure the confidentiality, integrity and security of the Data.
Service Provider will retain the customer information throughout the term of the Agreement, including any extensions or renewals, based on Auto Group’s direction that the Dealer has 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.
Service Provider Rights. Service Provider hereby retains, and is expressly granted, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid-up, freely transferable, and freely sublicensable license to: (i) provide the Services to Auto Group and/or the Dealer; (ii) retain the Raw and Processed Data to power the Foureyes software only for its own business purposes; and (iii) freely use and exploit the Anonymized Data for any lawful business purposes.
Rights and Consents. Auto Group represents and warrants to Service Provider that it has all necessary rights and authority, and during the term of this Agreement will maintain all necessary rights and authority, to bind the Dealer to the terms and conditions of this Agreement.
Call Tracking. The Services may enable each 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, Auto Group, and each Dealer, Auto Group acknowledges and agrees, on its own behalf and on behalf of the Dealer, that the Dealer is solely responsible for: (i) its use of any consumer data collected or maintained by the 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, provincial, territorial, 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, provincial, territorial, and federal laws and regulations; (iv) using and/or accessing the Call Tracking Services in strict compliance with all applicable local, state, provincial, territorial, 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. Auto Group acknowledges and agrees, on its own behalf and on behalf of each Dealer, that all use of the Call Tracking Services is at the Dealer’s sole risk.
Dealer is at all times responsible for maintaining and updating its privacy policies related to its websites and for compliance with all applicable privacy laws. Any privacy policies provided by Service Provider to Auto Group and/or Dealer are for convenience only and Auto Group and Dealer assumes all risks, including risk related to compliance with applicable privacy laws and anti-spam legislation, related to its website, its policies, disclosure of personal information to Service Provider in connection with this Agreement, and use of the Services, Data, Foureyes®, the data processed by Service Provider, and UDP. As a matter of convenience to Dealer, Service Provider may update the Dealer’s privacy policies displayed on Dealer’s website(s) at any time in so far as they relate to the Services, and Auto Group, on its own behalf and on behalf of each Dealer, consents to Service Provider updating and/or supplementing the privacy policies. Dealer and Auto Group will be solely responsible to understand and comply with all applicable local, state, provincial, territorial, and federal laws related to the Dealer’s privacy policies and the use of the Services and Foureyes®.
Data Privacy. As between, on the one hand, Auto Group and the Dealer, and on the other hand, Service Provider, Auto Group and/or the Dealer will be solely responsible for, and Service Provider will have no liability in connection with, Auto Group and/or the Dealer’s compliance with applicable local, state, provincial, territorial, 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 is and shall remain the sole and exclusive owner of all right, title and interest in and to its Foureyes platform, the UDP, and all related products and technology, and may terminate Dealer’s use of the Foureyes platform and/or the UDP at any time.
Disclaimer; Limitation of Liability. SERVICE PROVIDER DOES NOT MAKE AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR 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 REPRESENTATIONS OR WARRANTIES THAT MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. AUTO GROUP, ON ITS OWN BEHALF AND ON BEHALF OF EACH DEALER, ACKNOWLEDGES AND AGREES THAT THE USE OF THE UDP AND THE DATA IS AT AUTO GROUP’S AND/OR THE DEALER’S OWN RISK AND IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE 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, OR LOSS OF BUSINESS INFORMATION ARISING OUT OF THIS AGREEMENT, THE SERVICES, ACCESS TO THE DEALER’S CRM (IF APPLICABLE), AND/OR THE DATA, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND UNDER ANY THEORY LEGAL OR EQUITABLE THEORY. SERVICE PROVIDER’S AGGREGATE LIABILITY TO AUTO GROUP AND/OR ANY DEALER UNDER THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY OR RECOVERY, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY AUTO GROUP TO SERVICE PROVIDER DURING THE 30-DAY PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION FOR WHICH SERVICE PROVIDER IS ALLEGED TO BE LIABLE.
SERVICE PROVIDER DOES NOT WARRANT OR GUARANTEE THE DATA’S COMPLETENESS, LEGALITY, CORRECTNESS, ACCURACY, OR TIMELINESS. ANY FEATURES OR FUNCTIONS OF THE UDP THAT PREDICT OR SUGGEST FUTURE OUTCOMES OR RESULTS IS INFORMATIONAL ONLY, AND AUTO GROUP, ON ITS OWN BEHALF AND ON BEHALF OF EACH DEALER, ACKNOWLEDGES AND AGREES THAT SERVICE PROVIDER CANNOT AND DOES NOT GUARANTEE ANY PARTICULAR OUTCOMES OR RESULTS.
Access, Use, and Notification of Unauthorized Use. Auto Group acknowledges and agrees, on its own behalf and on behalf of each Dealer, Auto Group and/or the Dealer shall be responsible for all access to and use of the UDP directly or indirectly by or through the Dealer’s systems or its or its authorized users' access credentials, with or without Auto Group and/or Dealer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Auto Group and/or Dealer shall not, and shall not permit any other person to, access or use the UDP except as expressly permitted by this Agreement and, in the case of third-party materials, the applicable third-party license agreement. Auto Group and Dealer will use its reasonable best efforts to prevent any unauthorized use of the Services, Data, or UDP and will immediately notify Service Provider in writing of any unauthorized use that comes to Auto Group’s and/or Dealer’s attention. If there is unauthorized use by anyone who obtained access to the Services or the UDP through the Auto Group and/or Dealer, Auto Group and/or Dealer, as applicable, will take all steps reasonably necessary to terminate the unauthorized use. Auto Group and Dealer will reasonably cooperate and assist with any actions that Service Provider takes to prevent or terminate unauthorized use of the Services or UDP. If Auto Group and/or Dealer becomes aware of any actual or threatened activity prohibited by this paragraph, Auto Group and/or 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 Services and UDP 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.