Terms & Conditions
The terms and conditions (the “T&Cs”) contained herein apply to products and services sold and provided by Summit Resources, LLC d/b/a Client Command (hereinafter “CLIENT COMMAND”) to its automotive dealership clients (hereinafter each a “DEALER”). The particular terms and conditions which apply to each product are indicated on the “Order Form” executed between DEALER and CLIENT COMMAND as well as in the header of each major section below. The Order Form and these T&Cs may together be referred to herein as the “Agreement”.
PREVIOUS MASTER SERVICES AGREEMENT (MSA)
The following terms and conditions apply to ALL Client Command Products and Services without exception.
1. Term and Termination. Any product or service purchased has the Initial Term and Renewal Term as stated in the Order Form. It is possible for a product or service to only have an Initial Term, in which case the Order Form may not be terminated during the Term. The Order Form may only be terminated by either party at the end of the Initial or any Renewal Term by providing written notice to the other party. In general, notice must be received at least sixty (60) days prior to the end of the Initial Term or any Renewal Term. The sole exception to this notice requirement is that notice must be received at least twenty-one (21) days prior to the end of the then current term for Renewal Terms with a duration of one (1) month.
- a. Notwithstanding the foregoing, CLIENT COMMAND may terminate any Order Form immediately upon providing written notice to DEALER if:
- i. DEALER is thirty (30) days or more past due on any invoice issued by CLIENT COMMAND; or
- ii. DEALER has failed to respond to requests for approvals or input for more than ten (10) business days; or
- iii. In CLIENT COMMAND’S informed opinion, it would be a violation of any relevant law or regulation to continue providing products or services according to the terms of the Order Form.
2. Invoicing and Payment. DEALER agrees to compensate CLIENT COMMAND for the products and services outlined in the Order Form in the amount set forth in the Order Form. For any Initial or Renewal Term DEALER may elect to pay the total amount due for the Initial or Renewal Term upfront, not later than the first day of the term in question, or DEALER may elect to finance the total amount due for the Initial or Renewal Term over equal monthly payments (calculated by dividing the total amount due for the term in question over the number of months in that term) at zero percent (0.0%) interest. If DEALER elects to make monthly payments, DEALER shall pay to CLIENT COMMAND an amount equal to one (1) month’s payment concurrent with the execution of the Order Form. If DEALER fails to pay any invoice within fifteen (15) days of receipt of the invoice, then interest shall accrue at the rate of one- and one-half percent (1.5%) per month until paid in full. For financed payments, DEALER agrees to pay on or before the 15th day of each month.
- a. Bundled Pricing: Many CLIENT COMMAND products and services have overlapping components. As a result, CLIENT COMMAND may offer reduced pricing if DEALER purchases multiple products or the same product for multiple locations or brands. In the event that CLIENT COMMAND and DEALER agree to terminate any product or service, any other product or service that is not terminated may be subject to a price increase effective immediately to offset the costs of the overlapping components that no longer overlap.
- b. Temporary Service Pause: In the event that DEALER and CLIENT COMMAND agree to a temporary pause in marketing services, such temporary pause must be memorialized in writing and signed by both parties. DEALER shall pay to CLIENT COMMAND a Pause fee in the amount listed on CLIENT COMMAND’s then current price list for the maintenance of data access and other services that cannot be effectively paused.
3. 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.
4. Indemnification: DEALER and CLIENT COMMAND agree to the indemnifications and limitations of liability described in this section.
- a. 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 the 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.
- b. 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.
- c. 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).
5. Data Access: By signing an Order Form, DEALER is providing DEALER’s 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.
6. Force Majeure: Neither party shall be held liable or responsible to the other party or be deemed to be in breach of the Agreement for failure or delay in fulfilling or performing any obligation under the Agreement, excepting the obligation to pay, when such failure or delay is directly caused by events or acts beyond its reasonable control, including but not limited to: acts of God, terrorism, war or acts of war, strikes or other labor disturbances, or government interference. Changes to supply chains or market conditions shall not be considered force majeure events under any circumstance, regardless of their cause. The non-performing party shall notify the other party in writing of a force majeure event within ten (10) days after the occurrence of such event. The parties shall then suspend performance under the terms of the Order Form for not longer than is absolutely necessary to remedy the inability to perform. If this suspension lasts for longer than one hundred (120) days, either party may terminate the Order Form by providing written notice to the other, upon which all sums invoiced for services actually rendered shall be immediately due. Notwithstanding the foregoing, any event, change in market conditions, or other change of circumstance which is INDIRECTLY caused by any event or act described above shall not be considered a force majeure event.
7. Venue, Jurisdiction, and Choice of Law: DEALER and CLIENT COMMAND agree to the following:
- a. DEALER and CLIENT COMMAND agree that any suit, action or proceeding arising out of, or with respect to, any Order Form or other agreement between the parties or these T&Cs, 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.
- b. 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 any Order Form or other agreement between the parties or these T&Cs, 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.
- c. In the event CLIENT COMMAND must file suit against DEALER to enforce any part of any Order Form or other agreement between the parties or these T&Cs, CLIENT COMMAND shall be entitled to recover from DEALER all of CLIENT COMMAND’s costs, expenses and reasonable attorney(s) fees actually incurred.
- d. Any Order Form or other agreement between the parties or these T&Cs 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.
8. Sales Tax: DEALER shall be responsible for any sales tax which may be owed on any amounts paid to CLIENT COMMAND under this Agreement.
9. Severability: In the event that any one or more of the provisions contained in any Order Form or other agreement between the parties or these T&Cs 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 any Order Form or other agreement between the parties or these T&Cs shall be construed as if such invalid, illegal or unenforceable provision had never been contained in it, provided such construction does not render payment or provision of all services impossible.
10. No Assignment or Resale: Neither Party may assign or transfer any part of any Order Form or other agreement between the parties and/or these T&Cs without the written consent of the other Party, except that any Order Form or other agreement between the parties and/or these T&Cs 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, any Order Form or other agreement between the parties and/or these T&Cs will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 10 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.
11. No Waiver: No waiver by CLIENT COMMAND of any breach of any provision of any Order Form or other agreement between the parties or these T&Cs 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 any Order Form or other agreement between the parties or these T&Cs 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 any Order Form or other agreement between the parties or these T&Cs.
12. Modification of Terms: CLIENT COMMAND MAY, IN ITS SOLE DISCRETION, MAKE CHANGES TO THE TERMS AND CONDITIONS HEREIN AT ANY TIME. CLIENT COMMAND SHALL PROVIDE WRITTEN NOTICE TO DEALER OF MATERIAL CHANGES TO THESE TERMS AND CONDITIONS NOT LESS THAN FOURTEEN (14) DAYS PRIOR TO THE EFFECTIVE DATE OF THE CHANGES.
MARKETING PRODUCTS AND SERVICES TERMS & CONDITIONS
The following terms and conditions apply to ALL Consumer Marketing products and services provided by CLIENT COMMAND without exception.
1. Definitions. As used in these T&Cs and any Order Form, the following terms have the definitions given to them in this section. This is not an exhaustive list of terms used in these T&Cs or any Order Form, and these terms may not be used in all Order Forms.
- a. Prospect: the term “Prospect” shall be used to refer to any individual who could be included in any consumer list provided by DEALER to CLIENT COMMAND or generated, purchased, or compiled by CLIENT COMMAND for the purpose of delivering marketing to said individual as well as Digital Prospects as defined below.
- b. Digital Prospects: a “Digital Prospect” shall mean any person who, during the Term of any Order Form, engages with an ad for DEALER that was placed by CLIENT COMMAND, on any website on the internet on behalf of DEALER by clicking on and/or responding to said offer.
- c. Target Market: the term “Target Market” means a set of Prospects selected by CLIENT COMMAND from the geographical area surrounding DEALER’S sales location and from the DEALER’S database as such set is submitted by CLIENT COMMAND to DEALER in the form of the Target List.
- d. Target List: the term “Target List” means a list of Prospects submitted by CLIENT COMMAND to DEALER which contains the Target Market.
- e. Additional Prospects: the term “Additional Prospects” are any Prospect(s) that are added to the Target Market or Target List during the Term of the Order Form after the Target List has been initially provided by CLIENT COMMAND to DEALER.
- f. Conquest Customers: the term “Conquest Customers” means customers who have either 1) not purchased or leased a vehicle from DEALER during the five (5) years preceding the delivery of marketing to that customer, or 2) not purchased or leased a vehicle from DEALER during the period of time for which the DEALER has provided historical purchase and lease data, if less than five (5) years, to CLIENT COMMAND. For Service Marketing Products as identified on the Order Form, this term additionally includes customers who have not received vehicle servicing from DEALER during the time periods defined above.
- g. Retained Customers: the term “Retained Customers” means customers whose information is in DEALER’S database and who have purchased or leased a vehicle from DEALER during the five (5) years preceding the delivery of marketing to that customer. For Service Marketing Products as identified on the Order Form, this term additionally includes customers who have received vehicle servicing from DEALER within the last 5 years.
- h. Campaign Results: the term “Campaign Results” shall be used to refer to a report consisting of a list of customers who purchased (listed as a buyer or a co-buyer) or leased a vehicle from DEALER and who 1) were specifically identified in the Target Market, 2) reside at the same address as a Prospect listed in the Target Market, 3) use the same telephone number as a Prospect listed in the Target Market, and/or 4) use the same email address as a Prospect listed in the Target Market. Campaign Results represent sales attributable to CLIENT COMMAND’S marketing efforts for the purpose of demonstrating effectiveness or satisfying a guarantee as described on the Order Form. For Service Marketing Products, Campaign Results shall pertain to customers who purchased vehicle servicing, service packages, or parts.
- i. Order Form: the term “Order Form” shall refer to any signed CLIENT COMMAND order form between DEALER and CLIENT COMMAND, which may be signed in person or digitally, and which may be completed and submitted as a result of a sales call or via the CLIENT COMMAND portal.
- j. Term: the term “Term” shall be used to refer to both the Initial Term and any Renewal Term(s) as stated in an Order Form.
- k. Supplemental Campaign: the term “Supplemental Campaign” shall include a) advertising services for separate automobile brands using separate advertisements; b) more than one (1) DMS; or c) more than one (1) website.
2. Product and Experience. The terms and conditions in this section relate to the obligations and expectations for DEALER and CLIENT COMMAND during the term of an Order Form for the consumer marketing products contemplated by said Order Form.
- a. CLIENT COMMAND’S Services: As consideration for the payment of sums invoiced according to the terms of the Agreement, CLIENT COMMAND shall provide marketing services for DEALER. The marketing services shall include the services listed in the Order Form delivered according to the reasonable professional judgment of CLIENT COMMAND. CLIENT COMMAND, at its sole discretion, may withhold or reschedule future services if DEALER has not timely satisfied invoices through full payment thereof.
- b. Provision of Data: DEALER shall provide CLIENT COMMAND with such sales and service data as CLIENT COMMAND reasonably requests including, but not limited to, customer first and last name, customer address, customer phone number, customer email, vehicle purchased (year, make and model) and service repair order information within ten (10) business days of CLIENT COMMAND’S request for such data. Access to the data described in this section is necessary to identify customers as Conquest or Retained Customers. Failure to provide access to the data described in this section will render some reporting and services unavailable, including Campaign Results. The data access described in this section is most typically achieved through the grant of access to DEALER’S Dealership Management System (“DMS”). CLIENT COMMAND requires this data to provide DEALER with effective services and/or to determine the identity of purchasers and lessees of new and used vehicles during the Term of the Order Form. CLIENT COMMAND shall be entitled to request such data at any time during, or within ninety-nine (99) days after the end of Term of an Order Form. If DEALER fails to provide CLIENT COMMAND with the requested data within ten (10) business days after CLIENT COMMAND requests such data, DEALER agrees that the obligation to provide CLIENT COMMAND the compensation set forth in the Order Form remains in effect and CLIENT COMMAND will be relieved of the obligation to continue providing services to DEALER under the terms of the Agreement. DEALER agrees that CLIENT COMMAND has the right to audit sales data provided to CLIENT COMMAND by DEALER upon two (2) business days written notice by CLIENT COMMAND to DEALER.
- c. Target Market Selection: Prospects shall be selected by CLIENT COMMAND for the Target Market from DEALER’S database and other data sources based on CLIENT COMMAND’S proprietary Intention IndicatorTM as prospects likely to purchase, order, or lease a motor vehicle or purchase servicing, or a service package, depending on the product identified on the Order Form within ninety (90) days of the delivery of marketing under the terms of the Order Form. Prospects will remain a part of the Target Market from the time they are served an ad and/or fill- out a lead form for a period of ninety (90) days from the date of the last ad served by CLIENT COMMAND, whether during or after the Term.
- d. Target List Management: CLIENT COMMAND shall provide DEALER with the Target List by uploading the list to the CLIENT COMMAND website in the secure dealer portal (or other secure method) at the beginning of the Term, and may amend the Target List during the Term with Additional Prospects. CLIENT COMMAND shall present at least one (1) ad to each member of the Target Market on behalf of DEALER, and shall present additional ads to members of the Target Market CLIENT COMMAND identifies as likely to be responsive to additional impressions. CLIENT COMMAND may continue to market to any member of the Target Market on behalf of DEALER during the Term and for a period of ninety (90) days thereafter, during which ninety day period, CLIENT COMMAND may add prospects to the Target Market if CLIENT COMMAND deems such additions necessary. If DEALER’S Order Form permits the elective exclusion of Prospects from the Target Market, such exclusions must be provided to CLIENT COMMAND via fax, secure email, or CLIENT COMMAND portal upload not later than 12:00PM EST on the fifteenth (15th) day of the month to be excluded from the next month’s Target Market. DEALER shall provide CLIENT COMMAND with an up-to-date Email Opt-Out List every month, not later than the first (1st) day of the month in which ads are scheduled to be delivered. CLIENT COMMAND is not responsible for ads delivered to consumers on DEALER’S Email Opt-Out List if DEALER does not provide CLIENT COMMAND with said list in a timely fashion. Except as provided herein and in the Order Form, DEALER shall not be entitled to exclude any Prospects from the Target Market or Campaign Results. DEALER must retain a copy of the confirmation verifying when and how any exclusions or email opt-outs were provided to CLIENT COMMAND. Exclusions and opt-outs must be received by CLIENT COMMAND reasonably in advance of the Prospect being served an ad to be effective.
- e. Approvals and Proofs: CLIENT COMMAND may seek DEALER’S input and approval of marketing goals and content on a regular basis during the Term. CLIENT COMMAND may provide DEALER with advertising proofs, templates, or other creative materials for DEALER’S approval. DEALER may request up to two (2) revisions of each initial proof or template provided by CLIENT COMMAND. Additional revisions may be purchased. Failure to provide such approvals shall not relieve DEALER of its obligation to pay the total agreed amount for the Term. In the event that CLIENT COMMAND does not timely receive approval of content, marketing goals, or proofs when requested, CLIENT COMMAND may, in its sole discretion, either 1) rely on previous guidance from DEALER and continue to deliver marketing according to the terms of the Order Form, provided said guidance is less than thirty (30) days old or was received for a product which runs consistent minimally modified content, or 2) cease delivering marketing on behalf of DEALER until such time as the requested guidance is received. Unless otherwise agreed in writing, in the event CLIENT COMMAND chooses option 2) in the preceding sentence, the Term shall not be extended, and DEALER shall be responsible to pay the full agreed upon amount for the Term, regardless of whether or not CLIENT COMMAND provided services during the entire Term.
GUARANTEED PRODUCTS TERMS & CONDITIONS
The following terms and conditions are in addition to all other applicable terms and conditions and apply ONLY to Client Command Products and Services which are indicated on the Order Form to have a performance-based money back guarantee.
1. Conditions of Guarantee: For products and services which have a performance-based money back guarantee, DEALER shall be entitled to a refund only when circumstances arise as described in this section. DEALER may receive at most one (1) refund for each guarantee identified on the Order Form. Any refund due shall be calculated as described in this section.
- a. Refund Incentive Program: At the end of the Initial Term, DEALER will be entitled to a refund on a pro rata basis for each unit less than the number of units guaranteed, as stated on the order form sold, ordered, or leased by DEALER during the Initial Term and for a period of 180 days thereafter to members of the Target Market as documented in the Campaign Results if and only if the following conditions are met:
- i. DEALER sells or leases fewer units than the number guaranteed on the Order Form to members of the Target Market as documented in the Campaign Results, and
- ii. DEALER is paid in full under the terms of the Agreement, and
- iii. DEALER has provided data access and any requested approvals in a timely manner.
- b. Each guarantee stated on the Order Form will be measured separately, and any refund under this section will be based on which guarantee is not met, except that if a Conquest Customer guarantee is exceeded, the units constituting an overage may be applied to any Retained Customer guarantee (Retained Customer overages shall not be applied to Conquest Customer Guarantees). The per unit, pro-rata refund shall not exceed $500 per guaranteed unit. For example, if CLIENT COMMAND satisfies a stated guarantee for Conquest Customers, but not a separate stated guarantee for Retained Customers, DEALER would only be entitled to a refund on a pro-rata basis per unit price of the stated guarantee for Retained Customers. Example of how refund incentive program works: (i.e. If the stated guarantee for Conquest Customers is 80 units and the total amount due from DEALER for Conquest Customers is $35,200, and DEALER’s Campaign Results for Conquest Customers during the Initial Term results in 79 units sold or leased by DEALER and complies with all requirements in this section, then CLIENT COMMAND will refund to DEALER $440 which is 1/80 of the amount paid by DEALER.)
- c. No guarantee is given or implied unless explicitly stated on the Order Form.
2. Campaign Results Dispute Process: DEALER has twenty-one (21) days after receipt of Campaign Results during the Initial Term, and fourteen (14) days after receipt of Final Campaign Results to notify CLIENT COMMAND in writing of any dispute regarding Campaign Results. If DEALER does not timely dispute Campaign Results, then DEALER waives any right to dispute the Campaign Results in the future. Campaign Results shall be deemed received by the DEALER on the date the Campaign Results are sent by CLIENT COMMAND to DEALER. CLIENT COMMAND may send the Campaign Results to DEALER by e-mail, first class mail, commercial delivery service, facsimile, or any other standard means of communication between CLIENT COMMAND and DEALER. Undisputed and resolved Campaign Results are used to calculate units sold for the purpose of any guarantee. DEALER and CLIENT COMMAND agree that CLIENT COMMAND may reasonably rely on the data in DEALER’s DMS system to generate Campaign Results and identify sales, leases, and completed orders.
3. Renewals of Guaranteed Products: Any product which has a guarantee shall not automatically renew.
ALPHA AND BETA PRODUCTS TERMS & CONDITIONS
These terms and conditions are in addition to other applicable terms and conditions and apply ONLY to Client Command Products and Services designated as Alpha or Beta Trial Products on the Order Form.
1. Modification to Product. Any Alpha or Beta Trial Product or Service (each a “Trial Product”) is subject to changes to features or functions in CLIENT COMMAND’S sole discretion during the Term.
2. Participation in Trial Product. In consideration for promotional pricing, DEALER shall provide feedback and communication to assist CLIENT COMMAND in improving the Trial Product and DEALER understands that changes to the Trial Product may be significant, and that software bugs or fulfillment issues are likely. CLIENT COMMAND shall exercise commercially reasonable measures to remedy any bugs or issues in a timely fashion.
3. Additional Terms for Trial Product. A trial product may have additional terms and conditions which will be provided at the time of purchase.
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 shall prevent CLIENT COMMAND’s 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 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, but are not limited to, the Gramm-Leach-Bliley Act (“GLBA”) and , the laws of any state of the United States.
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 confidentiality, integrity, and availability 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.
Reynolds & Reynolds End-User License Addendum (EULA)
Whereas the products and services purchased by DEALER from 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 Order Form and these T&Cs (the “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.
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.