Terms and Conditions
These terms and conditions are agreed between you (“Customer”) and Hubiquity, Inc. d/b/a AutoHub (“AutoHub”), a Delaware corporation, having an office located at 2261 Market Street STE 85626, San Francisco, CA 94114, and upon execution of the Dealer Agreement shall govern the terms of the Dealer Subscription Agreement (the “Dealer Agreement” and, together with the Terms, the “Agreement”).
1. Scope of the Agreement and Process
Subject to the following terms and conditions, AutoHub shall use commercially reasonable efforts to provide the Services to Customer in accordance with each Order Form agreed to by the parties from time to time. The Order Form shall set forth the Services to be provided to Customer, the pricing for such Services, and such other terms as the parties may mutually agree. Upon execution of an Order Form by Customer and AutoHub, such Order Form shall automatically be deemed incorporated into and governed by the Terms, as well as any addendums included with this Agreement upon execution. In the event of a conflict between the Terms and an Order Form, the terms and conditions in the Order Form will prevail. Words and expressions defined in the Terms shall, unless the context requires otherwise, have the same meanings in the Order Form or any other document which is incorporated in this Agreement. Changes in any Order Form shall become effective only upon the execution by authorized representatives of both parties of a “Change Order”, the form and substance of which shall be mutually agreed to by the parties. All capitalized terms shall have the meaning given to such terms as defined in this Agreement or the relevant Order Form.
2. Services
AutoHub operates a technology platform called the AutoHub Platform that, among other things, enables Customer to (i) appraise and value vehicles for in-store, online and service drive applications, (ii) acquire vehicles with the AutoHub Platform’s acquisition tools and marketplace integration, (iii) manage inventory, (iv) manage automotive retail operations and (v) create and manage mobile and/or electronic messaging content and then initiate the transmission of Customer’s Communications over communications networks for ultimate delivery to individuals selected by Customer, as well as to receive communications from individuals; AutoHub also provides data analytics and dealer management systems integration and related consulting, implementation and support services to Customer (collectively, the “Services”).
2.1. General Terms
2.1.1. CTIA and Carrier Guidelines
In addition to any laws applicable to Customer’s Messages, the Services can be subject to the CTIA’s and wireless carriers’ text messaging requirements, including, but not limited to, the requirements imposed by The Campaign Registry and any applicable guidelines imposed by individual carriers (any applicable wireless industry requirements, along with the attached Acceptable Use Policy, are collectively referred to as the “User Guidelines”). The User Guidelines may be updated from time to time by the CTIA or individual carriers, and AutoHub does not have any control over changes to the User Guidelines, or CTIA or wireless carrier policies generally. It is the Customer’s responsibility to comply with the then applicable User Guidelines prior to its use of the Services. Customer shall cooperate in all respects with AutoHub in order to ensure compliance with the User Guidelines, including without limitation any and all messaging content initiated by Customer in connection with the Services. Customer’s failure to comply with the User Guidelines shall be deemed a material breach of this Agreement, and to the extent such breach is not cured within five (5) days of notification, AutoHub reserves the right to suspend or terminate the Service to the extent necessary to comply with the User Guidelines or other applicable law.
2.1.2. Reservation of Rights; Modified Terms
Notwithstanding anything to the contrary in the Agreement, AutoHub reserves the right to modify the Terms (other than as set forth in any Order Form, which may be modified as set forth in Section 1) at any time (such terms, the “Modified Terms”). Upon AutoHub’s written notice to Customer of the Modified Terms, the Terms, as modified by the Modified Terms shall govern the Customer’s continued use of the Services.
2.2. Access and Connectivity
2.2.1. Messages Not Encrypted
Customer acknowledges that Communications will be transmitted over the AutoHub Platform to downstream entities in an unencrypted format. Customer agrees that the Services should not be utilized to transmit or store personal information or other sensitive data.
2.2.2. Subscriber Opt-In/Opt-Out Requirements
To the extent required by any law applicable to Customer’s use of the Services, Customer will initiate Communications only to Subscribers who have consented or “opted in” to receiving the quantity, frequency and types of Communications specified in the applicable Order Form. If applicable, Customer will use the CTIA-required opt-in language and disclosures as stated in the User Guidelines.
2.2.3. Customer Content
Customer agrees that AutoHub exercises no control whatsoever over the content, timing and recipients of Customer’s Communications. AutoHub is a passive conduit that further transmits the Communications initiated by Customer. The Customer shall bear sole responsibility for (i) the content transmitted using the Services; and (ii) the acts, omissions or breaches of Subscribers with respect to the use of the Services, Projects and the Messages, including but not limited to the content. Customer will not use the Services or permit the Services to be used to transmit unlawful communications as defined and set forth in the User Guidelines or applicable law. Customer further agrees to take sole responsibility for any activities or actions under its password or Customer account, whether or not Customer authorized such activities or actions. Customer will immediately notify AutoHub of any unauthorized use of its password or Customer account.
2.2.4. Compliance Audit
Text messages programs may require approval, or later be audited, from Network Operators or the CTIA. Communications may also be subject to industry or governmental traceback investigations. Customer will provide AutoHub such information as these entities may request, within 72 hours of such request: (i) to confirm Customer’s compliance with its obligations under this Agreement or an Order Form or (ii) in response to any request made by any legal, regulatory, governmental authority, the Network Operator and/or the CTIA.
2.2.5. Restrictions
Except as expressly permitted in this Agreement, Customer shall not, and shall not allow any person to: (i) decompile, disassemble, or otherwise reverse engineer the Services or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Services by any means whatsoever; (ii) distribute, sell, rent, lease, or use the Services (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (iii) modify, translate or create derivative works of any part of the Services; or (iv) attempt to circumvent or disable any security mechanism that protects the Services against unauthorized use. Customer shall also not delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Licensor on or in the Services, and shall ensure that all such notices are reproduced on all copies of the Services.
2.2.6. U.S. Government Restricted Rights
Use, duplication or disclosure of any software included in the Services by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227–7013 for Department of Defense agencies, and subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19 for other agencies. Use, duplication or disclosure of any non-commercial software included in the Services by the U.S. Government is subject to restrictions as set forth in the Rights in Computer Software or Computer Software Documentation clause at DFARS 252.227–7014. If Customer intends to use the Services for these purposes, AutoHub must agree to this in writing in an Order Form, and Customer shall be solely liable for complying with the aforementioned governmental requirements.
2.2.7. Open Source Software
Some aspect of the Services may contain or be provided with components licensed from another party under a license commonly referred to as an open source, free software, copyleft or community source code license (collectively, “Open Source Software”). Customer acknowledges that the terms of the third party licenses governing such Open Source Software, not the terms and conditions of this Agreement, shall govern Customer’s use of such Open Source Software.
3. Financial Terms
3.1. Fees and Payment Terms
Customer will pay AutoHub the monthly fees set forth in the applicable Order Form upon receipt of an invoice from AutoHub. All payments will be made in U.S. dollars. Overdue payments will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum allowed under applicable law.
Billing will begin on the earlier of two dates: (1) 21 days after the agreement is signed, or (2) the date the product goes live at the dealership. If AutoHub or any of its vendors is not ready to support the dealership going live within those 21 days, billing will be deferred and will only begin once AutoHub is ready to provide support for the go-live. AutoHub reserves the right to bill for products separately as determined by AutoHub.
Customer shall remit payment to AutoHub using one of the following methods:
- Check mailed to AutoHub's address as specified on the invoice;
- Credit card via AutoHub's designated payment platform; or
- ACH transfer to AutoHub's designated account.
Customer shall follow AutoHub's payment process and shall not require AutoHub to adhere to Customer's accounts payable procedures.
Service cancellation can be requested at any time and will be effective 30 days after the requested date, assuming the initial contract period has been fulfilled. Any prepaid fees for services beyond the cancellation effective date will be refunded on a prorated basis.
To the extent a Network Operator, carrier and/or an aggregator levies new or increased charges or tariffs on AutoHub or the Services applicable to Customer’s communications (e.g., increased message termination fees), Customer shall be responsible for such additional fees, and the Parties agree that AutoHub may modify the fees set forth in an Order Form affected by such change to account for such new charges. In addition, AutoHub reserves the rights to increase the fees each year during the term of this Agreement by five percent (5%) or the percentage annual increase in CPI (Consumer Price Index), whichever is greater.
3.2. Taxes
Customer is responsible for any legally required sales, value-added, use, or other tax on goods or services provided pursuant to this Agreement or any Order Form, even if no such taxes are specified in the Order Form, provided that AutoHub shall be responsible for taxes based on its net income.
4. Term, Suspension and Termination
4.1. Term
The Agreement will commence upon execution of the Dealer Agreement and will continue for as long as an Order Form is in effect.
4.2. Termination for Cause
Either party may terminate this Agreement or an affected Order Form immediately upon written notice if the other party (i) becomes insolvent, ceases doing business in the regular course, files a petition for bankruptcy or is subject to the filing of an involuntary petition for bankruptcy which is not rescinded or dismissed within a period of sixty (60) days; or (ii) fails to cure a material breach of any Term of this Agreement or an Order Form within fifteen (15) days of written notice specifying such breach.
4.3. Effect of Termination
Upon the termination of this Agreement or an Order Form, (i) AutoHub will halt the Customer’s access to the AutoHub Platform, but if such termination relates only to a specific Order Form, then access shall be terminated only with respect to such terminated Order Form (it being acknowledged that access to the AutoHub Platform shall continue to the extent there is another Order Form outstanding); (ii) all rights granted under this Agreement will terminate immediately, unless only an Order Form is being terminated, and in such case, this Agreement shall survive with respect to any other outstanding Order Forms; and (iii) Customer shall pay any outstanding fees owed as of the effective date of termination. AutoHub will not be liable to Customer or any third party for any damages, expenses or losses incurred as a consequence of termination of this Agreement or an Order Form by AutoHub as provided in this Section 4. The provisions of Sections 2.2.2 (“Subscriber Opt-in/Opt-out Requirements”), 2.2.4 (“Compliance Audit”), 3 (“Financial Terms”), 4 (“Term, Suspension and Termination”), 5 (“Ownership”), 7.2 (“Disclaimer”), 8 (“Limitation of Liability”), 9 (“Indemnification”), 10 (“Confidentiality”), 11 (“Dispute Resolution”), 12 (“Miscellaneous”) and 13 (“Definitions”) will survive termination of this Agreement. Upon termination of this Agreement and all Order Forms, (i) Customer shall cease using, and shall return or destroy within ten (10) days, all Confidential Information of AutoHub, and (ii) AutoHub shall cease using, and shall return or destroy within ten (10) days, all Confidential Information of Customer, all Data, and all Communications (provided, however, that AutoHub may retain and continue to use any aggregated or anonymized data of any customer, and AutoHub may retain copies of Confidential Information pursuant to applicable law or pursuant to archival, backup, or data retention policies).
4.4. Suspension of Services
AutoHub may suspend, in whole or part, with or without notice, the Services or any Project (including the right to suspend a Customer’s account from sending or receiving messages) if: (i) Customer uses the Services in contravention of the User Guidelines, this Agreement, or applicable Order Form; (ii) such action is necessary to address emergency network repairs or threats or actual breach of network security; (iii) upon termination of a Network Operator, third-party subcontractor, vendor, or interconnected carrier relationship with AutoHub; (iv) upon any legal, regulatory, governmental or Network Operator prohibition or limitation affecting the Services; or (v) any payment due to AutoHub is outstanding for ten (10) days after the due date for payment. AutoHub will use commercially reasonable efforts to provide written notice of a suspension. AutoHub will not be liable to Customer or any third party for any damages, expenses or losses incurred as a consequence of any such suspension. AutoHub will promptly restore the suspended Services and/or Project after the condition producing the suspension has been rectified to AutoHub’s reasonable satisfaction.
5. Ownership
As between the parties, all right, title, and interest in and to the AutoHub Platform and any software, products, and technology (and any derivative works thereof) provided by AutoHub, and all underlying intellectual property rights, are and at all times will be, the sole and exclusive property of AutoHub or its licensors. Except as expressly set forth in this Agreement, Customer acquires no rights in or to the AutoHub Platform (other than the limited use rights granted herein or in an Order Form), and Customer shall not use the AutoHub Platform other than as specifically set forth in this Agreement or an Order Form. As between the parties, Customer retains rights in its Communications and Data, and AutoHub shall not disclose the content of any Communications or Data to any third party except (i) as approved by Customer in writing or (ii) to the extent necessary to perform the Services or to comply with applicable laws or governmental regulations, or an order from a court or administrative agency. In the event that AutoHub (i) receives a subpoena or demand from a government agency requiring the disclosure of Communications or Data or (ii) reasonably believes it is necessary to disclose any Communications or Data in order to protect AutoHub’s rights or property, including without limitation, to protect the operation of AutoHub Platform, AutoHub will notify Customer of such subpoena, demand or belief prior to disclosing any Communications or Data, so that Customer may seek a protective order or other appropriate remedy. Unless otherwise set forth in an Order Form, to the extent that AutoHub creates a work product during the course of the Services, AutoHub shall own all right, title, and interest in and to such work product, including all intellectual property rights therein.
6. Data and Marks
6.1. Limited Use of Data; Security
In performance of the Services, AutoHub may obtain, receive, store and collect Data. Customer hereby grants AutoHub a limited, perpetual, irrevocable, worldwide, royalty-free, sublicensable license to use the Data to provide the Services to Customer, to improve the Services for all customers, to validate and verify activities, and as required to be disclosed to aggregators and mobile carriers (provided, however, that for any uses of Data for purposes other than for Customer, AutoHub will aggregate the Data for use in an anonymous manner). AutoHub shall not use the Data for any other purposes than the aforementioned purposes unless authorized by Customer. AutoHub shall not disclose or otherwise transfer the Data to any other person except to the extent necessary to effectuate the foregoing purposes. AutoHub will make commercially reasonable efforts to maintain the security of all Data within its possession and to prevent it from unauthorized access or disclosure.
6.2. Limited Use of Marks
To the extent the messages that Customer creates and initiates through the Services contain Customer’s names, trademarks or other logos (collectively, the “Marks”), Customer hereby grants AutoHub the right to use such Marks for the limited purpose of providing the Services and further transmitting Customer’s messages. Except as set forth herein, neither party may use the Marks of the other party without its prior written consent.
7. Warranties; Disclaimer of Warranty
7.1. Legal and Regulatory Compliance
Customer represents, warrants and undertakes that it will (i) use the Services for lawful purposes and comply with the User Guidelines and all legal, regulatory, governmental and/or Network Operator requirements relating to the content, Communications, Projects, Messages or Services; (ii) provide promptly any information relating to the content, Projects, Communications, Messages or Services reasonably requested by AutoHub, any Network Operator, and/or any legal, regulatory, governmental, or statutory authority; and (iii) immediately comply with requirements as may be issued from time to time by any applicable Network Operator and/or legal, regulatory, governmental or statutory authority in relation to the content, Projects, Communications, Messages or Services and will fully cooperate with AutoHub’s request for assistance in conforming the Services and Projects to any new requirements. Customer will immediately inform AutoHub if any third party makes or threatens any claim or action against Customer, or AutoHub, or any other party relating to any content, Project, Communication, Message or Services.
7.2. DISCLAIMER
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, AUTOHUB DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AUTOHUB DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, AND AUTOHUB WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY UNAUTHORIZED ACCESS OR ACQUISITION OF CUSTOMER’S DATA. NO ADVICE OR NFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM AUTOHUB OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8. LIMITATION OF LIABILITY
AUTOHUB’S SOLE LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY CLAIM IN ANY MANNER RELATED TO THIS AGREEMENT OR ANY ORDER FORM, SHALL BE THE PAYMENT OF DIRECT DAMAGES. SUCH DAMAGES SHALL IN NO EVENT IN THE AGGREGATE EXCEED THE LESSER OF (X) $20,000 OR (Y) THE FEES RECEIVED BY AUTOHUB FROM CUSTOMER (I) WITH RESPECT TO THE WORK INVOLVED UNDER THE APPLICABLE ORDER FORM RELATED TO SUCH CLAIM AND (II) IN THE TWELVE (12) MONTH PERIOD PRIOR TO SUCH CLAIM. IN NO EVENT SHALL AUTOHUB BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PROFITS, LOST BUSINESS OR LOST SAVINGS, ANTICIPATED OR OTHERWISE (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT AUTOHUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE).
9. Indemnification
9.1. Generally
Customer shall, at its own expense, indemnify, defend, and hold harmless AutoHub and its affiliates, related companies, licensees and licensors, and their employees, contractors, agents, investors, officers and directors from any and all claims, damages, costs and expenses (including attorneys’ fees incurred from counsel selected by AutoHub in its discretion, as well as expert fees) arising from: (i) Customer’s alleged failure to comply with the User Guidelines or applicable law, (ii) Customer’s use of the Services; (iii) actions taken by AutoHub at the direction of Customer; (iv) AutoHub responding to a subpoena or other legal process related to Customer’s use of the Services; or (v) any claim that the Data or Communications (or any other content supplied by Customer) infringes, misappropriates, or violates another party’s intellectual property or privacy rights (including by reason of failure to obtain all necessary consents to provide such content to AutoHub). Customer may not consent to the entry of judgment or the admission of liability affecting AutoHub without AutoHub’s prior written consent. Nothing herein prevents AutoHub from retaining separate counsel at AutoHub’s sole cost.
10. Confidentiality
During the term of this Agreement, the parties may provide Confidential Information to each other to further the business objectives of this Agreement. A party receiving Confidential Information (the “Recipient”) shall hold the Confidential Information in strict confidence, provided that the Confidential Information may be disclosed to such of Recipient’s employees and independent contractors who have a need to know for the purpose of fulfilling Recipient’s obligations under this Agreement and who are bound by obligations of confidentiality at least as restrictive as in this Agreement (and the Recipient shall be liable for any breaches of confidentiality by such employees and independent contractors). Without prior written consent from the party disclosing the Confidential Information (the “Discloser”), Recipient shall not, and shall direct such individuals not to, use the Confidential Information other than to perform Recipient’s obligations hereunder, or disclose the Confidential Information in whole or in part, except to the extent compelled by law. Recipient shall employ all reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, all steps that Recipient takes to protect Recipient’s own confidential information. It is further understood and agreed that money damages would not be a sufficient remedy for any breach by Recipient of Recipient’s obligations under this Section and that Discloser shall be entitled to seek specific injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for the breach of obligations under this Section, but shall be in addition to all other available legal or equitable remedies. For purposes of this Agreement, “Confidential Information” shall mean all non-public information, whether oral, written or other tangible form that Discloser designates as being confidential or which, under the circumstances surrounding disclosure, the Recipient knows or has reason to know should be treated as confidential. Confidential Information does not include information (a) which is independently developed by the Recipient or its affiliated company (without the use of any of Discloser’s Confidential Information) or lawfully received free of restriction from another source having the right to so furnish such information; or (b) after it has become generally available to the public without breach of any obligation of confidentiality owed to the Discloser); or (c) which at the time of disclosure to the Recipient was known to such party or its affiliates free of restriction as evidenced by documentation in such party’s possession; or (d) which the Discloser agrees in writing is free of such restrictions. Notwithstanding the foregoing, Recipient may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (“Order”) provided that Recipient: (i) gives Discloser prompt written notice of the Order (if legally permitted); and (ii) cooperates fully with Discloser, at Discloser’s expense, before disclosure to provide Discloser with the opportunity to seek a protective order or other appropriate relief. Upon any termination of this Agreement, Recipient, except to the extent inconsistent with the requirements of applicable law, and except for documents retained pursuant to backup, archival, or document retention policies, will promptly provide to the Discloser with copies of all Confidential Information of the Disclosing Party then in Recipient’s possession or destroy all such copies, at Discloser’s request.
11. Dispute Resolution
In the event that there is a dispute, claim or controversy between Customer and AutoHub, or between Customer and any third-party acting on AutoHub’s behalf in connection with Customer’s use of the Services (a “Dispute”), arising out of or relating to this Agreement or in any way related to Customer’s use of the Services, including the determination of the scope or applicability of this Agreement to arbitrate, such Dispute shall be fully and finally determined by binding arbitration before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) and the arbitration shall be governed by the Consumer Arbitration Rules of the AAA in effect at the time the arbitration is commenced. The arbitrator will be selected by mutual agreement of the parties within fifteen (15) days from the commencement of the arbitration and, if the parties are unable to agree upon an arbitrator, the arbitrator shall be selected according to the Consumer Arbitration Rules of the AAA. Either party may commence arbitration by providing the other party to the Dispute a written demand for arbitration, setting forth the subject of the Dispute, the legal basis for such party’s claim, and the relief requested (the “Demand”).
The arbitrator will apply the substantive law of California, exclusive of its conflict or choice of law rules. Nothing in this paragraph will preclude any party from seeking equitable or provisional remedies in aid of arbitration from a court of competent jurisdiction. For purposes of enforcing this agreement to arbitrate, to enforce any arbitration award, or to obtain equitable or provisional relief, each of the parties unconditionally and irrevocably submit to the personal jurisdiction of the state and federal courts located in San Francisco County in the State of California. Each of the parties also irrevocably and unconditionally waives any objection to the laying of venue of any such proceeding in the state and federal courts located in San Francisco County in the State of California, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that such proceeding has been brought in an inconvenient forum.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in this paragraph with respect to applicable substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) will govern any arbitration conducted pursuant to these Terms.
To the fullest extent permitted by law, each of the parties agrees that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated, representative, or mass action. If for any reason a claim proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated hereby.
The appointed arbitrator may award monetary damages and any other remedies allowed by the laws of the State of California. In making his or her determination, the arbitrator will not have the authority to modify any term or provision of these Terms. The arbitrator will deliver a reasoned written decision with respect to the dispute (the “Award”) to each party, who will promptly act in accordance with the Award. Any Award (including interim or final remedies) may be confirmed or enforced in any court having jurisdiction, including any court having jurisdiction over either party or its assets. The decision of the arbitrator will be final and binding on the parties, and will not be subject to appeal or review. The award shall be made within 120 days of the filing of the Demand, and the arbitrator(s) shall agree to comply with this schedule before accepting appointment. However, this time limit may be extended by the arbitrator for good cause shown, or by mutual agreement of the parties.
Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of the court reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration of a Dispute arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, costs and attorneys’ fees reasonably incurred by the prevailing party in connection with that aspect of its claims or defenses on which it prevails, and any opposing awards of costs and attorneys’ fees awards will be offset.
The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, or confirmation of an Award or its enforcement, or unless otherwise required by any applicable law. Any documentary or other evidence produced in any arbitration hereunder will be treated as confidential by the parties, witnesses and arbitrators, and will not be disclosed to any third person (other than witnesses or experts), except as required by any applicable law or except if such evidence was obtained from the public domain or is otherwise obtained independently of the arbitration.
12. Miscellaneous
Neither party may assign or otherwise transfer this Agreement to any person or entity without the other party’s prior written consent except in the case of merger, acquisition, sale of assets, or to a parent or affiliate company. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Unless otherwise provided in an Addendum or Order Form, there are no third-party beneficiaries to the Agreement. All notices, including notices of address change, required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail or emailed to the applicable address or email address listed in the relevant Order Form (or, with respect to the Company, to the address set forth in the introductory provision). If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. This Agreement, including all applicable Order Forms, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Except for payment obligations, neither party is responsible for delays or failures to perform its responsibilities under the Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, malicious code, denial of service attacks, and inability to obtain energy (each a “Force Majeure Event”); provided, however, that it will resume performance as soon as reasonably practicable.
Any provision of the Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without (a) invalidating the remaining provisions hereof if the essential provisions of the Agreement for each party remain valid, binding, and enforceable, or (b) affecting the validity or enforceability of such provisions in any other jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions.
Without limiting the generality of the foregoing, Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of certain materials. Accordingly, Customer shall not export, directly or indirectly, all or part of the Services, or any product or other materials derived therefrom, to any country without the appropriate United States and/or foreign government licenses. Customer shall not export (including via the Internet) the Services to any country subject to a U.S. embargo.
13. Definitions
Words and expressions used in this Agreement will have the meanings defined below.
“AutoHub Platform” means the digital networks, server(s), hardware, software and/or any other equipment that AutoHub uses, at its sole discretion, in connection with the provision of the Services.
“Communication” means a voice call, prerecorded voice call, voicemail drop, or Message that Customer initiates and which is further transmitted by AutoHub to the recipient selected by Customer or that is sent by the selected recipient to Customer in return.
“Customer” means the entity executing an Order Form, including any person AutoHub reasonably believes to act with the Customer’s authority.
“Data” means all data and information, including device-specific data, provided by Customer to AutoHub and generated by Customer’s use of the AutoHub Platform.
“Message” means a digital message comprising numerals, text, images, music, games and/or applications in a form for delivery via Short Message Service (SMS), Wireless Application Protocol (WAP), Multi-Media Messaging Service (MMS) technology, or other technology, protocols or standards used to transmit digital content or information, including messages transmitted over social media platforms.
“Network Operator” means an organization that provides carrier services (network services) in the wired or wireless arena; “Network Operator Conditions” means the terms and conditions governing the use of a Network Operator’s carrier services; “Order Form” means a document (including a Dealer Agreement) which contains a description of, and pricing for, the Services (including any special terms) executed by both parties (it being acknowledged that for purposes of this Agreement, a Statement of Work entered into by the Customer and AutoHub is synonymous with the term Order Form as used in this Agreement).
“Project” means marketing, advertising, promotional or informational program or initiative, or other project, conducted by Customer utilizing the Services.
“Subscriber” means a person who has entered into an agreement with a Network Operator that allows such subscriber to access one of the systems or networks operated by such Network Operator.
“Terms” means the terms and conditions of this Agreement, as may be revised from time to time in accordance with Section 2.1.2 (“Reservation of Rights”), and any Order Form(s), as may be revised in accordance with Section 1 (“Scope of Agreement”).
“Unit” means one Dealer Management System (DMS), with the following considerations:
(i) Multiple OEM franchises operating under one DMS and in the same physical building will generally be considered one unit, with the following specific franchise combinations that will be considered one unit even with separate websites: CDJR (Chrysler, Dodge, Jeep, RAM); Porsche/Audi; JLR (Jaguar/Land Rover); Buick/GMC; Toyota/Lexus, and Hyundai/Genesis;
(ii) Multiple dealerships sharing one DMS but operating in different physical buildings and/or with different websites will generally be considered separate units
Acceptable Use Policy Addendum
This Acceptable Use Policy (“AUP” or “Policy”) describes the actions that are prohibited and conduct that is expected when you, as Customer, or any party acting on your behalf, use AutoHub’s Services. This AUP is designed to complement – not replace – any agreement between us that governs your use of AutoHub’s Services, such as the AutoHub Master Services Agreement, an applicable Order Form, or any other agreement between you and AutoHub. This Policy is designed to help you understand some of our expectations for responsible and legal use of the Services.
The Services may not be used in any manner that: (i) is illegal; (ii) is non-compliant with accepted industry best practices or applicable guidelines, (iii) disrupts or damages any of AutoHub’s computer systems or network or other parties’ computer systems and networks, or (iv) violates any person’s rights.
The following list provides examples of prohibited uses and is not meant to be comprehensive, and you are ultimately responsible for the Communications that you initiate through the Services. You agree that your use of the AutoHub Services will only be for lawful purposes, and will not include:
- Initiating any Communications through the Services to an individual who has not consented or otherwise opted-in to the receipt of such message as required by any applicable law, regulation or carrier guidelines.
- Engaging in any Communications that is offensive, obscene, libelous, defamatory, fraudulent, abusive, or contains tortious material.
- Engaging in Communications that is unsuitable for minors.
- Engaging in Communications that promotes, incites or instructs on criminal matters.
- Engaging in Communications that is false, misleading or deceptive, or likely to mislead or deceive.
- Engaging in Communications that infringes the intellectual property rights or other rights of a third party, including trademarks, copyrights or other rights of publicity.
- Using the Services to receive, transmit or otherwise maintain electronic Protected Health Information, as defined by the Health Insurance Portability and Accountability Act of 1996, as amended, or use the Services in any manner that would make AutoHub your or any third party’s business associate.
- Using the Services in any manner that violates: applicable industry standards; any third party policies including all of the applicable guidelines published by the CTIA, or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third party policies or requirements in any other jurisdiction); or additional requirements that AutoHub may communicate to you.
- Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs.
- Reverse-engineering the Services in order to find limitations, vulnerabilities, or evade monitoring capabilities.
- Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means.
- Engaging in Communications that is otherwise unlawful or could expose AutoHub or any third party to liability, damages, or danger.
- Customer shall not utilize any of the Company technology to initiate or transmit unsolicited outbound, pre-recorded, voice messages.
In addition, you will honor immediately any requests to opt-out or stop further messaging (e.g., any “STOP” messages), and desist from initiating any further message following receipt of any such opt-out or stop request. You should also schedule the timing of your messages responsibly and adhere to any calling time restrictions and disclosure requirements that may be applicable to your messages.
Violation of this AUP may result in termination or suspension of all Services provided by AutoHub and may also result in civil, criminal, or administrative liability or penalties against you. Remember, you are ultimately responsible to make your own informed decisions regarding your use of the Services and you remain fully liable for any use of the Services in violation of any applicable law, as well as this Acceptable Use Policy and any operative agreement(s) between us.