SMARTAUTOBUILD TERMS OF SERVICES
This Terms of Service Agreement (the "Agreement") is entered into by and between SmartAutoBuild, a Canadian corporation ("Company"), and the entity or individual agreeing to these terms ("User" or "You"). If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions. If You do not have such authority or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the services provided by SmartAutoBuild.
1. DEFINITIONS
1.1 "Services" means the speed-to-merchandizing software provided by SmartAutoBuild. For new cars, services include the cloning of actual pictures based on make, model, year, exterior and interior color, and providing a 360-exterior video of the car. For used cars, services include VIN decoding, writing taglines, vehicle descriptions, providing stock images, and uploading real pictures once provided by the dealer."
1.2 "User Data" means any data, information, or content provided or submitted by User to the Services.
1.3 "SmartAutoBuild’s Unique Vehicle Identifiers" means SmartAutoBuild retains all right, title, and interest, including all copyright, patent, trade secret, trademark, and any other intellectual property rights in and to SmartAutoBuild’s unique vehicle identifiers such as SmartAutoBuild Style ID, SmartAutoBuild ACode, and/or generic feature codes provided by SmartAutoBuild to Licensee in conjunction with the SmartAutoBuild Deliverables, including all updates, derivative works, and modifications thereto (collectively, the “SmartAutoBuild Codes”). SmartAutoBuild hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revocable license, during the Term, to use the SmartAutoBuild Codes internally, as needed, to support its authorized use of the SmartAutoBuild Deliverable licensed to Licensee under the Order Schedule and for no other purpose. Licensee shall gain no right, title, or interest in the SmartAutoBuild Codes by virtue of this Agreement, other than this non-exclusive license. Licensee shall not provide any SmartAutoBuild Codes delivered with any of the SmartAutoBuild Deliverables licensed to Licensee under the Order Schedule to any third party or Licensee’s Representatives except Licensee’s employees who have a need to know for the purposes contemplated herein.
1.4 "Documentation" means any documentation provided by SmartAutoBuild with respect to the SmartAutoBuild Deliverables.
2. USE OF SERVICES
2.1 License Grant. Subject to the terms and conditions of this Agreement, SmartAutoBuild grants User a non-exclusive, non-transferable license to use the Services during the term of this Agreement.
2.2 Restrictions. User agrees not to, and not to allow third parties to: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Services; (b) modify or make derivative works based upon the Services; (c) reverse engineer or access the Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of the Services, or (iii) copy any ideas, features, functions, or graphics of the Services.
2.3 Right of Use. SmartAutoBuild reserves the right to use the client logins provided by the client on various merchandising platforms to deliver the service. Additionally, SmartAutoBuild retains the right to use the pictures and videos taken through the SmartAutoBuild mobile app for merchandising purposes.
3. USER OBLIGATIONS
3.1 Compliance. User shall comply with all applicable laws, regulations, and third-party agreements in connection with its use of the Services.
3.2 User Data. User is solely responsible for the accuracy, content, and legality of all User Data. User grants SmartAutoBuild the right to use, modify, and distribute User Data solely to the extent necessary to provide the Services.
4. PAYMENT
4.1 Fees. User agrees to pay all fees specified in the order or invoice provided by SmartAutoBuild.
4.2 Taxes. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and User shall be responsible for payment of all such taxes, levies, or duties.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either party.
5.2 Termination. Either party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach unless such breach is cured within the 30-day period.
6. CONFIDENTIALITY
6.1 Confidential Information. Each party agrees to keep confidential all non-public information disclosed by the other party that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential.
7. LIMITATION OF LIABILITY
7.1 Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover, or punitive damages.
8. ADDITIONAL TERMS SPECIFIC TO SMARTAUTOBUILD
8.1 SmartAutoBuild’s Unique Vehicle Identifiers: SmartAutoBuild retains all right, title, and interest, including all copyright, patent, trade secret, trademark, and any other intellectual property rights in and to SmartAutoBuild’s unique vehicle identifiers such as SmartAutoBuild Style ID, SmartAutoBuild ACode, and/or generic feature codes provided by SmartAutoBuild to Licensee in conjunction with the SmartAutoBuild Deliverables, including all updates, derivative works, and modifications thereto (collectively, the “SmartAutoBuild Codes”). SmartAutoBuild hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revocable license, during the Term, to use the SmartAutoBuild Codes internally, as needed, to support its authorized use of the SmartAutoBuild Deliverable licensed to Licensee under the Order Schedule and for no other purpose. Licensee shall gain no right, title, or interest in the SmartAutoBuild Codes by virtue of this Agreement, other than this non-exclusive license. Licensee shall not provide any SmartAutoBuild Codes delivered with any of the SmartAutoBuild Deliverables licensed to Licensee under the Order Schedule to any third party or Licensee’s Representatives except Licensee’s employees who have a need to know for the purposes contemplated herein.
8.2 Documentation. Subject to the terms and conditions of this Agreement, SmartAutoBuild hereby grants to Licensee a non-exclusive, non-transferable license to copy and display internally any Documentation with respect to the SmartAutoBuild Deliverables. Licensee acknowledges that the Documentation is Confidential Information of SmartAutoBuild.
8.3 Limitations. Licensee shall not (i) make copies of, publish, disclose or use or permit the use of, any portion of the SmartAutoBuild Deliverables except as authorized by this Agreement; (ii) except as otherwise provided herein, sublicense any of its rights or redistribute any of the data in the SmartAutoBuild Deliverables to any third party without the prior written consent of SmartAutoBuild; (iii) authorize any third party to frame or co-brand those portions of the Designated Web Site(s)/Dealer Web Sites/Third Party Web Sites that contain any SmartAutoBuild Deliverables without the prior written permission of SmartAutoBuild; (iv) allow end users to download or copy any SmartAutoBuild Deliverables from the Designated Web Site(s)/Dealer Web Sites/Third Party Web Sites onto any other PC or server, other than by normal web browser use of viewing and printing any web page; (v) publicly display any Canadian invoice pricing information contained within the SmartAutoBuild Deliverables in any consumer-facing applications; (vi) make any modifications to any of the SmartAutoBuild Deliverables; (vii) reverse engineer, decompile, or disassemble the SmartAutoBuild Deliverables, or use the SmartAutoBuild Deliverables to create a derivative or similar work, or permit any other third party to do so; (viii) for the purpose of distributing a database that is directly competitive to SmartAutoBuild, persist the results of the SmartAutoBuild Deliverables in electronic or any other form, or permit any other third party to do so; (ix) utilize the SmartAutoBuild Deliverables in any manner to create any products or a Stand-alone Configurator that would compete with SmartAutoBuild’s proprietary products and services; or (x) engage in any activity that interferes with or disrupts the delivery of the SmartAutoBuild Deliverables (or the servers and networks which are used to deliver the SmartAutoBuild Deliverables).
9. GENERAL
9.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Canada, without regard to its conflict of laws principles.
9.2 Dispute Resolution. Any dispute arising out of or in connection with this Agreement shall be resolved through arbitration in accordance with the rules of [Arbitration Organization], and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
9.3 Waiver. The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
9.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
9.5 Assignment. User may not assign or transfer its rights or obligations under this Agreement without the prior written consent of SmartAutoBuild.
9.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations.
9.7 Amendments. SmartAutoBuild reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is the responsibility of the User to check this Agreement periodically for changes. User's continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
9.8 Notices. Any notices or other communications required or permitted by this Agreement, including those regarding modifications to this Agreement, will be in writing and given by SmartAutoBuild via email or by posting to the Services.
IN WITNESS WHEREOF, the parties hereto have executed this Terms of Service Agreement as of the Effective Date.