DSP Service Dealer End Use License Agreement

Last Updated: July 28, 2022

You (“You” or “Dealer”) are receiving access to the online DSplus solution for authorized Toyota dealerships (collectively the “DSP System”). The DSP System is provided by Outsell, Inc. as agent for DSplus, a division of Saatchi & Saatchi North America, LLC (Outsell, Inc. and DSplus together referred to herein as “DSplus”).

Please read these terms carefully to understand (1) your liability for the email data you upload to the DSP System, (2) your permitted use of the content available in the DSP System and (3) other important and binding legal terms.

BY ACCESSING THE SYSTEM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”). IF AN INDIVIDUAL IS ACCESSING THE DSP SERVICE ON BEHALF OF A BUSINESS ENTITY, BY DOING SO, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE LEGAL CAPACITY AND AUTHORITY TO BIND SUCH BUSINESS ENTITY TO THIS AGREEMENT. THE TERM “YOU” OR “DEALER” SHALL REFER TO BOTH THE BUSINESS ENTITY AND THE INDIVIDUAL ACCESSING THE DSP SERVICE ON BEHALF OF SUCH BUSINESS ENTITY.

1. License Grant and Restrictions.
   
   Subject to the terms and conditions of this Agreement, DSplus grants to you a limited, non- exclusive, non-transferable license to use the DSP System solely for your internal business purposes and only by the Dealer’s employees (“Authorized Users”). You agree that each Authorized User shall be bound by this Agreement. You must use this DSP Service subject to this Agreement, all applicable laws, rules and regulations and any agreements or terms with third parties to which You are subject.
   
   DSplus shall provide Dealer with IDs and passwords to access and use the DSP Service. All IDs must be safeguarded at all times. The IDs may not be used by any party other than Authorized Users without the prior written consent of DSplus. Dealer acknowledges that DSplus may, from time to time, monitor the logon times and usage under each ID for the purpose of verifying that the Dealer and its permitted users are the sole holders and users of the IDs and are in compliance with this Agreement. Dealer shall be responsible for all usage of the DSP Service under its IDs, whether authorized or unauthorized by Dealer, except to the extent caused by a negligent act by DSplus.
   
   Dealer agrees that it shall not use any persons, means, devices or arrangements to commit fraud, exceed its permitted access to the DSP Service, interfere with other users or falsify or manipulate results or information generated or collected in connection with the DSP Service. Dealer may not resell or charge for access to or use of the DSP Service. Dealer shall be solely responsible for all actions of its employees and persons who gain access to the DSP Service through Dealer.
   
   You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the DSP System or any portion or content thereof in any way; (ii) modify or make derivative works based upon the DSP System; (iii) “frame” or “mirror” any content on any other server or wireless or internet-based device; (iv) import or export the DSP System or any portion thereof in violation of United States or other applicable import or export law; (v) reverse engineer or access the DSP System or any portion thereof in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics, or (c) copy any ideas, features, functions or graphics of the DSP System; (vi) use the DSP System to provide consulting or other services to third parties; or (vii) delete any copyright, trademark, patent or other notices of proprietary rights of DSplus as they appear anywhere in or on the DSP System.
   
   You shall not: (i) use the DSP System to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the DSP System or the data contained therein; or (iii) attempt to gain unauthorized access to the DSP System or related systems or networks.
2. Proprietary Rights.
   
   As between DSplus and you, DSplus has all rights, title, interest, ownership and proprietary rights in and to the DSP System and all associated technology, processes, know-how, instructions, training materials, documentation, and all improvements and enhancements thereto. DSplus’s rights include, but are not limited to, the DSP System and any patent rights (including but not limited to patent applications and disclosures), copyrights, trademark rights, trade secret rights, and any other intellectual property right recognized in any country or jurisdiction in the world, as well as the content and related services. The DSP System is protected both by United States law and international treaty provisions. Any improvements, enhancements or modifications to the DSP Service created, suggested or requested by Dealer, including any and all trademarks, patents, copyrights or trade secrets in connection therewith (collectively, “Improvements”), shall be automatically assigned to, and owned by, DSplus. To the extent any Improvements are not automatically assigned to DSplus, Dealer agrees to take all reasonable measures, at DSplus’s expense, to perfect such rights in DSplus. Dealer will not remove or obscure any copyright, trademark or patent notices that appear on the DSP Service or its output. Dealer shall take no position contrary to, or that would diminish, the ownership rights set forth herein. All rights not specifically granted to Dealer hereunder are retained by DSplus and its licensors.
3. Payment Terms.
   
   You shall be responsible for paying the fees associated with the use of the DSP System as set forth from time to time by DSplus. The fees may be contingent, in part, upon the contribution and/or participation in related services by the Toyota Dealer Association to which you may belong. Rates may increase based upon the participation level of such Toyota Dealer Association. For these and other reasons, you acknowledge that these fees may increase at any time. In the event of collection enforcement, you will be liable for any costs associated with such collection, including, without limitation, reasonable attorney fees, court costs and collection agency fees. Your access to any portion of the DSP System or related application may be suspended if you have not made timely payment for access. DSplus reserves the right to impose a fee for restoration of any suspended accounts. You are solely responsible for the payment of any sales taxes, fees, tariffs or other such levies resulting from your access to, or use of, the DSP System.
   
   DSplus will use commercially reasonable best efforts to maintain physical and technical security procedures for the DSP System provided however that DSplus is not responsible for any acts of third parties and cannot warrant that the Services will be completely secure from interference or disruption by factors outside DSplus’s control.
4. Sales and Use Tax Policy Statement
   
   We have prepared this sales tax policy statement to explain to you when and why we collect sales tax on your purchases.
   
   IMPORTANT NOTICE: Even if we do not collect sales tax from you, you may owe sales tax on your purchase. Unless you live in Alaska, Delaware, Montana, New Hampshire, or Oregon, your state most likely requires purchasers to report and pay tax on all purchases that are not taxed at the time of sale. For more information, please visit your state’s department of revenue website.
   
   OUTSELL DOES NOT COLLECT SALES TAX in any state NOT listed above because Outsell is not required to collect sales or use tax in these states.
   
   OUTSELL COLLECTS SALES TAX in states where we are registered to collect sales. We collect sales tax in the following states: Minnesota, Texas
   
   FOR OUR TAX-EXEMPT CUSTOMERS:
   OUTSELL DOES NOT COLLECT SALES TAX if we have your exemption certificate on file.
5. Your Responsibilities for Infrastructure; Dealer Data and Ads.
   1. Infrastructure. You agree to maintain your computers, and to ensure the presence and continued operation of the web browsers, network infrastructure and internet service necessary to access the DSP System. You also agree to comply with any requirements regarding use of the DSP System, including hardware and connectively requirements, set forth in DSplus’s standard policies and any documentation accompanying the DSP System. If any portion of the DSP System fails to operate, it is your responsibility to immediately notify DSplus of such failure.
   2. Dealer Data Responsibilities. During the term of this Agreement, you may enter certain data including but not limited to customer lists and e-mail lists (“Dealer Data”) into the DSP System. You are responsible for managing and maintaining your Dealer Data and complying with the following requirements:
      1. Program Contact. You are responsible for maintaining and updating contact lists for all program communications and providing prompt notice of any changes to the lists to the program administrator.
      2. Customer Contacts. You are responsible for (a) maintaining and updating customer contact lists and providing a list of users who have unsubscribed or opted-out from receiving marketing messages; (b) ensuring that no rented or purchased e-mail or mobile prospects are included in your Dealer Data; and (c) providing updated customer contact lists to the program administrator.
      3. Links. You are responsible for testing and verifying all links directed to your website and updating such links as needed (as may be used in your newsletter and campaigns) with notice to the program administrator.
         
         Dealer acknowledges that it is responsible for complying with all applicable laws, rules and regulations regarding email marketing, including but not limited to, the Can Spam Act of 2003 and any laws in the state where the Dealer is located. In addition, Dealer shall comply with all applicable laws, rules and regulations regarding consumer privacy and the promotion and sale of Dealer’s products and services.
         
         In the event that you do not meet any of the above requirements, DSplus may, at its option, remove any non-compliant Dealer Data and/or terminate this Agreement.
   3. Ads. Dealer may only use the DSP Service for a Dealer’s own Toyota dealerships. Dealers may use the DSP Service to create advertisements (“Ads”) using the content provided by the DSP Service (the “DSP Content”), use the Dealer Data to deliver the Ads to customers, manage campaigns for such Ads and customers and access reporting on the performance of such campaigns. Dealers may insert their own content (“Dealer Content”) in specifically designated portions of the Ads. However, Dealers may not modify the DSP Content or otherwise modify the Ads for any reason without DSplus’s prior written approval.
      
      Information you access or receive pursuant to this Agreement, including but not limited to information about the DSP System and/or DSplus services is DSplus’s “Confidential Information.” Each party agrees to take reasonable steps to protect the other party’s Confidential Information, including not disclosing it to third parties except as otherwise permitted by this Agreement or required by law.
      
      Confidential Information does not include any information that a party receiving information (a “Receiving Party”) can demonstrate by written records: (i) was known to the Receiving Party prior to its disclosure hereunder by the disclosing party (“Disclosing Party”); (ii) was independently developed by the Receiving Party; (iii) is or becomes publicly known through no wrongful act of the Receiving Party; (iv) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction; or (v) has been approved for public release by the Disclosing Party’s prior written authorization. Confidential Information may be disclosed pursuant to applicable law, regulations or court order, provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek protective order or otherwise prevent such disclosure.
6. Consent to Use of Dealer Data.
   
   Dealer owns and shall retain all rights in and to the Dealer Data. DSplus does not acquire any interest in the Dealer Data by virtue of providing the DSP Service. Notwithstanding the foregoing, Dealer hereby grants DSplus a limited license during the term of this Agreement to use the Dealer Data solely to provide the DSP Service to Dealer, including delivering Ads to customers or other third parties as authorized by Dealer. Dealer shall be responsible for (a) all content and use of the Dealer Data, and shall make commercially reasonable efforts to ensure that the Dealer Data is accurate, up to date and maintained on a regular basis; (b) obtaining all required and legally enforceable consents (as applicable) or otherwise having the right under applicable data privacy laws to disclose the Dealer Data to DSplus; and (c) has implemented a mechanism to obtain consent or facilitate opt-outs from consumers as may be required under applicable data privacy laws. DSplus may use the Dealer Data in order to create, use and disclose aggregate statistics, provided that, any such use will not publicly identify Dealer or be used to target Dealer or its customers based upon their status as such.
7. Term and Termination.
   
   In addition to any right or remedy that may be available to DSplus under this Agreement or applicable law, DSplus may suspend, limit or terminate your account, or all or a portion of your access to the DSP Service, at any time with or without notice and with or without cause. In addition, DSplus may share certain information with the Toyota Dealers Association of which you are a member.
   
   Further, DSplus may terminate this Agreement if it no longer possesses the rights to provide the DSP Service to Dealer or no longer has a relationship with Toyota or an applicable Toyota Dealer Association. You may terminate your use of the DSP Service at any time upon thirty (30) days prior written notice.
   
   DSplus may suspend all or a portion of Dealer’s access to the DSP Service or delivery of the Ads in the event that DSplus reasonably believes that continued access could expose DSplus to liability to third parties or harm the DSP Service. DSplus shall make commercially reasonable efforts to provide Dealer with prior notice of such actions or notice promptly thereafter, and shall restore such access promptly upon resolution of the matter.
8. NO WARRANTY.
   
   THE DSP SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DSplus IS NOT RESPONSIBLE FOR ANY DECISIONS MADE AS A RESULT OF USE OF THE DSP SERVICE. DSplus DOES NOT WARRANT THAT THE DSP SERVICE WILL MEET DEALER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE DSP SERVICE WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. DSplus SHALL NOT BE LIABLE TO DEALER FOR ANY INOPERABILITY OF THE DSP SERVICE OR FOR ANY LOSS OF INFORMATION OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND.
   
   You agree to defend, indemnify and hold harmless DSplus, Outsell , Inc., Toyota Motor Sales, U.S.A., Inc., the various Toyota Dealership Associations, their affiliates, subsidiaries, parents, officers, directors, employees, dealers, business partners and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) any breach or alleged breach by You of any terms of this Agreement, (ii) the Dealer Data or Dealer Content, (iii) Your use of materials or features available on the DSP Service (except to the extent a claim is based upon infringement of a third party right by materials created by DSplus and used by You in accordance with DSplus instruction(s)) or (iv) a violation by You of applicable law, including data privacy law, or any agreement or terms with a third party to which You are subject.
9. LIMITATION OF LIABILITY.
   
   IN NO EVENT SHALL DSPLUS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE DSP SYSTEM, INCLUDING LOSSES RESULTING FROM LOSS, MISAPPROPRIATION OR UNAUTHORIZED ACCESS TO OR MODIFICATION OF DEALER DATA, OR FROM MISTAKES, OMISSIONS, OR DELAYS IN TRANSMISSION OF INFORMATION, OR FROM INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE DSP SYSTEM, VIRUSES OR FAILURES OF PERFORMANCE, OR FROM THE IMPACT OF THE DSP SYSTEM ON ANY SYSTEM, EVEN IF DSPLUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DSPLUS’S TOTAL LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF ANY LICENSE FEE PAID BY YOU TO DSplus FOR THE DSP SYSTEM DURING THE MOST RECENT SIX (6) MONTHS. The foregoing limitations shall apply even if the remedy fails of its essential purpose. Because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not apply to you. DSplus reserves the right to deliver a modified version of the DSP System, or alternate product that has comparable features, at any time, and you agree to accept such modified or alternate product.

The laws of the State of New York shall govern this Agreement. YOU HEREBY EXPRESSLY CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR ALL MATTERS ARISING IN CONNECTION WITH THIS AGREEMENT OR YOUR ACCESS OR USE OF THE DSP SERVICE. Any claims asserted by You in connection with the DSP Service must be asserted in writing to DSplus within one (1) year of the date such claim first arose, or such claim is forever waived by you. Each claim shall be adjudicated individually, and you agree not to combine Your claim with the claim of any third party.

All information posted on the DSP Service is subject to change without notice. In addition, this Agreement may be changed at any time without prior notice. DSplus will make such changes by posting them on the DSP Service. You should check the DSP Service for such changes frequently. Your continued access of the DSP Service after such changes conclusively demonstrates your acceptance of those changes.

This Agreement may not be assigned by You without the prior written consent of the DSplus. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. The prevailing party shall be entitled to collect its reasonable attorney’s fees, costs and expenses in any action brought to enforce rights hereunder. If any part of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of this Agreement. This Agreement represents the entire agreement between the parties on the subject matter herein and supersedes any prior agreements or understandings, whether oral or written. No amendment or modification of this Agreement shall be made except by a writing signed by both parties.

Should you have any questions concerning the DSP System or this Agreement, contact DSplus LLC at 2 N. Riverside Plaza, Suite 1200, Chicago, IL 60606 PH: 877.331.9980 support@DSplusPHQ.com.