Terms Conditions - Client Command

Terms & Conditions

1. Compliance with Law: DEALER and CLIENT COMMAND shall comply with all requirements under the Federal CAN-SPAM Act which is contained at 15 U.S.C. § 7701, et. seq. DEALER expressly warrants that all email addresses provided to CLIENT COMMAND have not opted out of receiving email from DEALER. CLIENT COMMAND shall indemnify DEALER only for claims against DEALER for violations of the Federal CAN-SPAM Act that do not involve the content of the advertisement text contained in any email sent by CLIENT COMMAND to the Target List. DEALER shall indemnify CLIENT COMMAND only for claims against CLIENT COMMAND for violations of the Federal CAN-SPAM Act involving the content of the advertisement text contained in any email sent by CLIENT COMMAND to the Target List.

2. Indemnification:

2.1 DEALER shall indemnify and hold harmless CLIENT COMMAND, its officers, directors, employees, agents and representatives for, any and all claims, suits, actions, proceedings (formal and informal), investigations, judgments, deficiencies, damages, settlements, liabilities, losses, costs and expenses (including reasonable legal fees and expenses of attorneys) as and when incurred, arising out of, based upon or occasioned by (i) any act or omission, by DEALER in connection with the acceptance of, or the performance or nonperformance by DEALER of, any of its duties and obligations under this Agreement, (ii) the content of any advertising material in the creative materials, or the content of any additional advertising in the creative materials, as requested at the direction, supervision or control of DEALER, inclusive of any third party claims of intellectual property infringement (e.g., patents, trademarks, or copyrights) in connection with the creative materials used, by CLIENT COMMAND in providing the services hereunder.
2.2 CLIENT COMMAND shall indemnify and hold harmless DEALER, its officers, directors, employees, agents and representatives for, any and all claims, suits, actions, proceedings (formal and informal), investigations, judgments, deficiencies, damages, settlements, liabilities, losses, costs and expenses (including reasonable legal fees and expenses of attorneys) as and when incurred, arising out of, based upon or occasioned by any act or omission, by CLIENT COMMAND in connection with the acceptance of, or the performance or nonperformance by CLIENT COMMAND of, any of its duties and obligations under this Agreement.
2.3 The Indemnified Party must: (i) promptly notify the Indemnifying Party in writing of any third-party claim (provided that failure to promptly notify will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter; (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may, at its expense, join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (A) involves only the payment of money damages by the Indemnifying Party, and (B) includes a complete release of liability in favor of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).

3. Data Access: By signing this Agreement, DEALER is providing DEALER’s dealer management system (“DMS”) provider with DEALER’s written consent to permit CLIENT COMMAND to access data on DEALER’s DMS system. Such access is for CLIENT COMMAND to provide the services contracted for, hereunder, and CLIENT COMMAND will not use DEALER’s data for any other purposes, other than for purposes of product improvement. NOTICE TO NORTH CAROLINA DEALERS: THIS END USER LICENSE AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.

4. Force Majeure: If CLIENT COMMAND is prevented from completing performance of any, or all, obligations under this Agreement by an act of God or any other occurrence beyond its control, then CLIENT COMMAND shall be excused from further performance under all terms of this Agreement after notice to DEALER stating the reason for the nonperformance.

5. Jurisdiction: (i) The parties to this Agreement (or any other agreement between the parties) agree that any suit, action or proceeding arising out of, or with respect to, this Agreement (or any other agreement between the parties) or any judgment entered by any court in respect thereof shall be brought in the courts of the County of Cobb, Georgia or in the U.S. District Court for the Northern District of Georgia and each party hereby irrevocably accepts the exclusive personal jurisdiction of those courts for the purpose of any suit, action or proceeding. (ii) In addition, each party hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement (or any other agreement between the parties) or any judgment entered by any court in respect thereof brought in the County of Cobb, Georgia or the U.S. District Court for the Northern District of Georgia, and hereby further irrevocably waives any claim that any suit, action or proceedings brought in any such court has been brought in an inconvenient forum. (iii) In the event CLIENT COMMAND must file suit against DEALER to enforce any part of this Agreement, CLIENT COMMAND shall be entitled to recover from DEALER all of CLIENT COMMAND’s costs, expenses and reasonable attorney(s) fees actually incurred.

6. Sales Tax: DEALER shall be responsible for any sales tax which may be owed on any amounts paid to CLIENT COMMAND under this Agreement.

7. Severability: In the event that any one or more of the provisions contained in this Agreement (or any other agreement between the parties) shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions, and the Agreement (or any other agreement between the parties) shall be construed as if such invalid, illegal or unenforceable provision had never been contained in it.

8. No Assignment or Resale: Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party, except that this Agreement may be assigned without consent to a person or entity who acquires by sale, merger or otherwise, all, or substantially all, of the assigning Party’s assets, stock or business. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 8 will be void and of no effect. DEALER may not resell any Service. Each Party is permitted, however, to use Subcontractors in connection with this Agreement, but is liable for their acts and omissions.

9. Miscellaneous: This Agreement shall be governed and construed in accordance with the laws of the State of Georgia, excluding Georgia’s choice-of-law principles, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Georgia, excluding Georgia’s choice-of-law principles.

10. No Waiver: No waiver by CLIENT COMMAND of any breach of any provision of this Agreement shall constitute a waiver of any other breach or of such provision. Failure of CLIENT COMMAND to enforce at any time, or from time to time, any provision of this Agreement shall not be construed as a waiver thereof. The rights and remedies set forth in this Paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.

Privacy Policy & Data Division Standard Authorization

The access provided in the Dealer Agreement allows CLIENT COMMAND to access the customer file and download the information essential to the performance of its campaigns. CLIENT COMMAND, and its affiliates, agree to hold all information confidential as described in the Privacy Policy & Data Division Standard Authorization, below. You authorize CLIENT COMMAND to access your system, and/or utilize the data provided by DEALER, under the provisions described below.

Privacy Policy & Data Division Standard Authorization
This Privacy Policy & Data Division Standard Authorization Agreement (the “Data Agreement”) is a part of any CLIENT COMMAND Dealer Agreement (the “Agreement”). To the extent that the Data Agreement has any terms inconsistent with the Agreement, the terms of the Data Agreement shall control. Pursuant to the Agreement, CLIENT COMMAND is providing, or will provide, certain goods and/or services to DEALER. During the course of performing the Agreement, CLIENT COMMAND may be provided access to certain confidential and proprietary information regarding DEALER’s business and operations, including non-public personal information about DEALER’s customers. By means of this Data Agreement, DEALER and CLIENT COMMAND desire to confirm the following understandings with respect to the use, disclosure and provision of such information:

1. CLIENT COMMAND shall keep all Proprietary Information (as defined below) of DEALER confidential and shall not, without the prior written consent of Dealer, disclose such information to any party other than to its officers, directors, employees, agents, representatives and third-party vendors who need to know such information in connection with the performance of the Agreement and who have been advised of the obligations, hereunder, and agreed to abide by the terms hereof. Nothing in the Agreement or Data Agreement shall prevent CLIENT COMMAND use of DEALER’s name along with results of marketing services provided by CLIENT COMMAND to DEALER in CLIENT COMMAND’s marketing materials, nor shall anything in the Agreement or Data Agreement prevent CLIENT COMMAND from using Proprietary Information to offer other services to DEALER.

2. CLIENT COMMAND acknowledges that all Proprietary Information of DEALER is, and shall remain, the exclusive property of DEALER.

3. CLIENT COMMAND agrees that upon the request by DEALER, CLIENT COMMAND shall promptly deliver to DEALER all tangible materials containing Proprietary Information, and shall not retain any copies, extracts or other reproductions of such materials.

4. DEALER and CLIENT COMMAND shall comply with all applicable legal obligations relating to privacy, security, integrity, and confidentiality of proprietary Information collected from DEALER, except for aggregated data that does not enable identification of the DEALER’s individual retail customers and any other extracted data (“Customer Information”), which obligations may include the Gramm-Leach-Bliley Act (“GLBA”) and its implementing regulations, the Personal Information Protection and Electronic Documents Act of Canada (“PIPEDA”), the laws of any state of the United States, and the laws of any province of Canada.

5. Each party will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (a) ensure against any anticipated threats or hazards to the security or integrity of the Customer Information; and (b) protect against unauthorized access to, or use of, the Customer Information that could result in substantial harm or inconvenience to the DEALER or the individual who is the subject of Customer Information.

6. Each party may disclose Customer Information, when required, pursuant to any federal or state law or regulation or rules or regulations of any governmental agency. These provisions shall apply during the term and after the termination of the Agreement.

7. As used herein, “Proprietary Information” shall mean all information, whether written or oral, tangible or intangible, of a confidential or proprietary nature, of or concerning such party and its business and operations, including non-public personal information (as defined under the Gramm-Leach-Bliley Act), business plans and strategies, computer software and marketing and sales information, but shall not include any information which (a) was known by CLIENT COMMAND prior to disclosure by DEALER, (b) becomes available to CLIENT COMMAND from a source other than Dealer that is not bound by a duty of confidentiality to DEALER, or (c) becomes generally available or known in the industry other than as a result of the conduct of CLIENT COMMAND.

NCOALink® LIMITED SERVICE PROVIDER REQUIRED TEXT DOCUMENT

Client Command is a non-exclusive Broker of the USPS® (United States Postal Service®) to provide Limited Service NCOALink® processing.
It is important to note that not all Service Providers can offer the same level of service. Data quantity differs based on license level. Full Service Providers receive the full 48-month data set while Limited Service Providers receive an 18 month data set. All data fulfillments to Service Providers are provided weekly under direct license from the USPS.
The full NCOALink file is a consolidated file of move information that on average contains approximately 160 million permanent changes-of-address (COAs) filed with the United States Postal Service (USPS). These COAs are retained on the file for a four-year period from the move-effective date and the file is updated weekly.
Before being added to the NCOALink file, the Old address supplied by the Postal customer must be ZIP + 4 coded. The
New addresses must be ZIP + 4 coded and validated using the USPS’ proprietary database of actual delivery points. (NOTE: The delivery point database does not include NAMES or COA information.) Each delivery point confirmed New address is included on the NCOALink file. If unable to validate the New address, the NCOALink process will indicate that a move exists but will not provide the undeliverable New address.
New address information is provided only when a match to the input name and address is attained. The typical profile of the New address information contained on the NCOA file is as follows:

- - - 80.92% Forwardable moves containing delivery point confirmed New addresses – New address provided
    - 1.18% Moves containing unconfirmed New addresses – New address not provided
    - 13.80% Moved, left no address
    - 3.92% PO Box Closed
    - 0.18% Foreign moves

When possible, postal customers who move multiple times within the NCOALink time period are “linked” or “chained” to ensure that the latest address is furnished when an NCOALink match is attained. This is not always possible if subsequent COAs are not filed in exactly the same manner as a COA filed previously (e.g., name spelling differences or conflicting secondary information).
The provision of change of address information is controlled by strict name and address matching logic. NCOALink processing will only provide new address information when queried with a specific algorithm of the name and input address from a mailers address list which matches the information on the NCOALink Product. Data contained in and information returned by NCOALink is determined by the name and move type (Business, Individual, or Family) indicated on a Postal Customer’s Change of Address Form.

Reynolds & Reynolds End-User License Addendum (EULA)

Whereas the products and services purchased by DEALER from Summit Resources, LLC (hereinafter referred to as “CLIENT COMMAND”) may make use of the “Reynolds Interface” (defined herein as any product, process, or other intellectual property developed or owned by Reynolds and Reynolds Company to which access is provided in connection with a CLIENT COMMAND product or service or which is accessed by CLIENT COMMAND on behalf of DEALER) the following terms and conditions apply and are specific to the products and services which make use of the Reynolds Interface. Nothing herein should be construed to apply to dealers who do not utilize the Reynolds Interface or other Reynolds and Reynolds products or services in conjunction with their CLIENT COMMAND agreement.

1. License. As part of the valid consideration provided for the payment of all sums due from DEALER to CLIENT COMMAND under the terms of the Agreement, CLIENT COMMAND hereby conveys to DEALER for the term of the Agreement only, a limited license authorizing DEALER to use CLIENT COMMAND products and services including the Reynolds Interface. DEALER shall not have the right to convey any license to the Reynolds Interface and shall not share any access to the Reynolds Interface except with its employees as is necessary to make use of CLIENT COMMAND products and services in their intended manner. With respect to the foregoing, DEALER also may not transfer any part of the CLIENT COMMAND products and services (including the Reynolds Interface) to any third party via lending, leasing, licensing, pledging, or outsourcing.

2. Reverse Engineering. DEALER shall not copy, disassemble, decompile, and/or reverse engineer any part of the CLIENT COMMAND products and services, including but not limited to the Reynolds Interface.

3. Ownership and Rights. Nothing herein should be construed to convey to DEALER any right, title, or interest in the CLIENT COMMAND products and services or the Reynolds Interface. CLIENT COMMAND reserves all rights, title, and interest to its own products and services, and all rights, title and interest in the Reynolds Interface are reserved to Reynolds and Reynolds Company.

4. Limitation of Liability – Product. The CLIENT COMMAND products and services (including those utilizing the Reynolds Interface) provided under the terms of the Agreement contain portions of program code owned by third party licensors, and such licensors will be entitled to enforce this Addendum as an intended third-party beneficiary, and the obligations of the DEALER cannot be modified nor terminated without the written consent of such third-party licensors. DEALER shall not disclose any passwords or other security information that are related to the Reynolds Interface. CLIENT COMMAND AND REYNOLDS AND REYNOLDS COMPANY DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event will any Reynolds and Reynolds Company be liable for indirect, incidental, consequential or exemplary damages arising from use or inability to use Reynolds Interface, even if they knew of the possibility of such damages occurring.

5. Limitation of Liability – Data. As part of its Reynolds Certified Interface program, DEALER’S Dealer Management System (“DMS”) provider, The Reynolds and Reynolds Company, and its affiliates (collectively “Reynolds”) has developed certain processes that allow certain third-party software Clients, including CLIENT COMMAND, to receive from Reynolds certain data from the DEALER’S DMS and/or allow CLIENT COMMAND to send data to the DEALER’S DMS. By agreeing to these terms, DEALER is providing consent to: (a) Reynolds’s providing CLIENT COMMAND with data from DEALER’S DMS and (b) CLIENT COMMAND’S providing Reynolds with CLIENT COMMAND data, both of which may include, without limitation, non-public information regarding DEALER’S customers. By agreeing to these terms DEALER represents and agrees that: (a) Reynolds makes no representations, assurances, warranties or guarantees with respect to CLIENT COMMAND’S products and services or CLIENT COMMAND’S receipt of data from the DEALER’S DMS; (b) Reynolds shall have no liability whatsoever for any damages DEALER may suffer as a result of using CLIENT COMMAND products and services or because of CLIENT COMMAND’S receipt of data from DEALER’S DMS; (c) Reynolds has no responsibility for the activities of CLIEND COMMAND with respect to its receiving data from DEALER’S DMS, including, without limitation, with respect to Customer NPI received or used by CLIENT COMMAND; (d) Reynolds may terminate the integration described in this Addendum at any time if Reynolds determines that such integration may conflict with or adversely affect the operation or security of DEALER’S DMS (including, without limitation, the integrity or security of the data) or such integration may violate any applicable laws or regulations; (e) problems caused by the integration described in this Addendum will not be covered by any software support and equipment maintenance services or fees previously agreed between DEALER and Reynolds; and (f) Reynolds has the right to enforce its rights under this agreement. NOTICE TO NORTH CAROLINA DEALERS: THIS ADDENDUM RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CUSTOMER RELATED DATA.

6. Termination. In the event of a material breach of this Addendum or the Agreement by DEALER, CLIENT COMMAND may, in its sole discretion, terminate DEALER’S access to the Reynolds Interface until such time as the breach can be remedied or the parties can come to a modified agreement related to the use of CLIENT COMMAND’S products and services as related to the Reynolds Interface. In the event that either party believes the other party is non-compliant with its legal and regulatory obligations regarding privacy and data security as it relates to the Agreement or Addendum, and is therefore in breach of its obligations hereunder, the non-breaching party may send written notice to the non-compliant party informing them of the non-compliance. Upon receipt of such notice, the receiving party shall have not longer than thirty (30) days to become compliant and produce documentation demonstrating said compliance. If the receiving party does not demonstrate compliance within the thirty (30) day cure period, the non-breaching party shall have the right, in its sole discretion, to terminate the Agreement and Addendum by providing written notice to that effect.

7. Relationship to Agreement. Nothing in this Addendum should be construed to modify anything in the existing Agreement between the parties, except to add the terms herein to the Agreement. Whenever possible, this Addendum and the Agreement should be construed so as not to conflict with one another, but in the event of a conflict, the Agreement shall govern with respect to all items between DEALER and CLIENT COMMAND, and the Addendum shall govern with respect to the specific usage of CLIENT COMMAND products and services that make use of the Reynolds Interface.