These Terms and Conditions (the “Agreement”) are between Outsell Corporation (“Outsell”) and the dealer subscribing to Outsell Connect for CRM (the “Service”) (“you”). The Service may also be made available to you through an agency or association authorized by Outsell, but regardless of whether you obtain the Service through an intermediary or directly from Outsell, the Agreement will govern and Outsell is the only intended beneficiary thereof.
The Service is an integration between the Outsell Fuel Platform and your customer relationship management software (“the CRM”) to deliver you in-market consumer intelligence and information on your known customers and prospects (“the Leads”) directly into the CRM. For the avoidance of doubt, you must obtain a separate license to the Outsell Fuel Platform and the Outsell BuyerScout product from Outsell, or through an agency or associate authorized by Outsell, to use the Service.
You must accept this Agreement, the Outsell Fuel Platform End User License Agreement (“the EULA”), and the Outsell BuyerScout license to use the Connect for CRM Service. Your use of the Service constitutes acceptance by you of this Agreement. If you do not agree to this Agreement, no license is granted to you and you are prohibited from using the Service.
- Subject to this Agreement, Outsell grants to you a limited, non-exclusive, non-transferable license to use the Service as made available to you in connection with your purchase (or trial) of the Service provided by Outsell, or through an agency or association authorized by Outsell, solely for your internal business purposes and only by you and your principals, dealership staff and/or marketing agents to whom you provide access to the Service (“Authorized Users”) pursuant to this Agreement, whether directly accessed through the Outsell Fuel Platform or indirectly through the Service or the CRM. You agree that each Authorized User shall be bound by this Agreement and you are responsible for all actions and inactions by Authorized Users with respect to the Service, including any breach of this Agreement by an Authorized User.
- You acknowledge that the Service are licensed, and not sold, to you. No ownership rights are granted to you or may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights, including all intellectual property rights, not expressly granted to you are reserved by Outsell. You may not modify, reverse engineer, rent, lease, loan, sell, or distribute the Service or create derivative works based on the Service (either in whole or in part), except as provided in this Agreement. You further acknowledge that the Service may contain information which is designated confidential, and you agree not to make any public disclosure of any kind whatsoever of such confidential information without Outsell’s prior written consent.
- CRM Setup. You are solely responsible for determining whether the Service is compatible with the CRM. You are solely responsible for the execution and setup of all procedures in the CRM to ensure that Leads sent by the Service appear properly and in a functional manner in the CRM.
- No Lead Volume Guarantee. You understand that Outsell makes no guarantee of volume of Leads. Leads are qualified to be sent from the Service based on Outsell’s internal procedures, which may be subject to change at any time and without notice to you.
- Outreach and Lead Information. You acknowledge that Outsell is not liable for any outreach to Leads sent to the CRM. All outreach by you or on your behalf should ensure that the Leads’ privacy, personally identifiable information (“PII”), and proprietary information are protected in a manner consistent with industry best practices, all applicable laws, and consumer privacy regulations. Further, you grant to Outsell all such rights and permissions in data or information relating to Leads as may be necessary or useful to perform the Service. In the event the performance of the Service requires Outsell to access your computer systems to collect data or information or perform the Service, you grant and authorize Outsell such access.
- Service Failure. If any portion of the Service fails to operate, it is your responsibility to immediately notify Outsell of such failure.
- Right to Modify Service. Outsell reserves the right to modify, suspend, impose limits on certain features of the Service, restrict access to parts of the Service, or temporarily or permanently discontinue the Service or any portion thereof at any time, including the availability of any functionality of the Service, for any reason or no reason. If Outsell makes changes in the Service, you understand and acknowledge that you may no longer be able to use the Service to the same extent or in the same manner in which you used them prior to such change or discontinuation, and, unless such modifications are material and adversely affect your ability to use and enjoy the Service, that Outsell shall have no liability to you with respect to the impact such changes have on your use and enjoyment of the Service.
- Fees. You agree to pay the fees for the Service, if any, in the amounts set forth in the registration process or, if an order form was used, on the order form. All fees stated hereunder are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. You assume exclusive liability for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Service.
- Audit. On Outsell’s written request, you shall conduct a review of your use the Service and certify to Outsell in a written instrument that you are in full compliance with this Agreement and all applicable laws.
- Suspension of Service. Outsell may immediately, directly or indirectly, suspend or otherwise deny your access or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Outsell receives a judicial or other governmental demand or order; (b) Outsell believes, in its sole discretion, that you: (i) have failed to comply with any term of this Agreement (including a failure to make any payment when due) or the EULA; (ii) have accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (iii) have been, or are likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Service; or (c) this Agreement expires or is terminated.
- Term/Termination. The effective date of this Agreement shall be the first day on which you access the Service and will remain in effect until terminated, or if applicable, until the expiration of your subscription whichever is earlier. Outsell may terminate this Agreement: (a) effective on 10 days’ written notice for any reason or no reason; (b) effective on 5 days’ written notice if you breach this Agreement (including a failure to make any payment when due) or the EULA and fail to cure such breach during the notice period; or (c) effective immediately upon written notice if you become insolvent, enter bankruptcy, or are generally unable to pay, or fail to pay your debts as they become due. You may terminate this Agreement on 60 days’ prior written notice to Outsell. Upon any expiration or termination of this Agreement all rights, licenses, consents and authorizations granted by Outsell to you hereunder will immediately terminate.
- Representations and Warranties. You represent and warrant that: (a) you are duly organized, validly existing and in good standing; (b) you have the full right, power and authority to enter into and perform the obligations and grant the rights, licenses, consents and authorizations granted or required to grant under this Agreement, including without limitation, the necessary rights, power, authority and consents in and relating to Lead information and data so that, as received by Outsell, it does not and will not infringe, misappropriate or otherwise violate any intellectual property or privacy rights, or violate any other applicable law; (c) this Agreement will constitute the legal, valid and binding obligation, and enforceable against you; and (d) this Agreement does not violate or conflict with any applicable law or regulation or agreement between you and any third party (including the CRM).
- Limitation of Liability. IN NO EVENT SHALL OUTSELL 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 SERVICE. IN NO EVENT SHALL OUTSELL BE LIABLE FOR THE ALTERNATION, DESTRUCTION, DAMAGE, CORRUPTION, RECOVERY, MISAPPROPRIATION OR UNAUTHORIZED ACCESS TO OR MODIFICATION OF END USER DATA, OR FOR MISTAKES, OMISSIONS, OR DELAYS IN TRANSMISSION OF INFORMATION, OR FOR INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SERVICE, VIRUSES OR FAILURES OF PERFORMANCE, OR FOR THE IMPACT OF THE SYSTEM ON ANY SYSTEM, EVEN IF OUTSELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. IN NO EVENT SHALL OUTSELL’S TOTAL LIABILITY TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF ANY LICENSE FEE PAID BY YOU TO OUTSELL FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL OUTSELL BE LIABLE IN ANY WAY FOR THE ACTS OR OMISSIONS OF THE CRM, THE OPERATION OF THE CRM, OR ANY FEES RELATED THERETO. 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.
- Warranty Disclaimer. ALL SERVICE ARE PROVIDED “AS IS” AND OUTSELL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OUTSELL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE (INCLUDING THE CRM), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS (INCLUDING THE CRM) ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. FOR THE AVOIDANCE OF DOUBT, OUTSELL IS NOT RESPONSIBLE FOR ANY FEES OR CHARGES FROM SUCH THIRD-PARTY.
- Indemnification. You shall indemnify, defend and hold harmless Outsell and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, an “Outsell Indemnitee”) from and against any and all losses incurred by such Outsell Indemnitee in connection with any action arising out of or relating to: (a) Lead data and information; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by you or on your behalf to an Outsell Indemnitee; (c) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants or obligations under this Agreement or violation of any applicable law; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by you or on your behalf, in connection with this Agreement.
- Miscellaneous. You shall not assign or otherwise transfer any of your rights or obligations under this Agreement without Outsell’s prior written consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Agreement. Any right or obligation in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any such expiration or termination. Each party shall be excused from performance hereunder, except for payment obligations, to the extent that it is prevented from performing any obligation, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control. The parties are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created between you and Outsell. Any notice to be provided under this Agreement shall be in writing and shall be delivered to the last known address of the party to receive the notice, which shall be considered delivered three days after mailing if sent certified mail, return receipt requested, or when received, if sent by e-mail, facsimile, prepaid courier, express mail or personal delivery. This Agreement constitutes the entire agreement and understanding of the parties in respect of the subject matter contained herein and supersedes all prior agreements, consents and understandings relating to such subject matter. This Agreement shall be governed by the laws of the State of Minnesota without regard to its conflict of laws provisions. The parties agree to submit to the exclusive jurisdiction of the courts located within Minnesota to resolve any legal matter arising from the Agreement.
UPON SUBMISSION, YOU (AS AN INDIVIDUAL) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE DEALER SUBSCRIBING TO THE SERVICES AND ALL AUTHORIZED USERS, AND SUCH DEALER AND ALL AUTHORIZED USERS CONSENT TO ABIDE BY ALL OF THE TERMS OF THIS AGREEMENT.