For the BuyerScout Service
You are a dealer and a dealership member of an advertising program created and provided by Online Administrators, Inc., dba PEAK Performance (“PEAK”), and you are referred to hereinafter as “you” / “your” / “yourself” or “Subscriber”.
PEAK is proud to introduce to you the BuyerScout Service. To bring you the BuyerScout Service, PEAK has partnered with Outsell LLC (“Outsell”), an automotive marketing software company to provide the BuyerScout Service. BuyerScout™ is a unique solution that allows you to monitor and analyze your customers’ online activity to build a complete picture of their buying behavior, their brand preferences and their shopping intensity to determine which customers are most ready to buy. (For purposes of this Agreement, “Customers” refers to your buyers and potential buyers.) A component of the BuyerScout product consists of a data analytics platform called the VisiCogn® Collection Utility and Knowledge Center, which assists Outsell in collecting anonymized and non-personally identifiable online demographical and behavioral data generated by website visitors, including their shopping behavior and brand preference behavior (referred to hereinafter as “Data”, and further described in Section 4 below), and which Data is provided by Dataium LLC (“Dataium”), a partner of Outsell for the BuyerScout Service. Outsell’s BuyerScout product may be accompanied or supplemented by additional software, technology, information in various formats, or other supporting items, which are hereinafter referred to as “Supplementals”. The BuyerScout product, along with its Dataium component and its Supplementals are all part of PEAK’s BuyerScout Service, and all are collectively referred to hereinafter as the “Service”.
Please read these terms carefully, because you will be required to indicate your understanding of and your affirmative agreement to the Terms of this Agreement by clicking through the “I CONSENT” box before you will be able to use the Service, and because if you and your employees do not comply with and abide by this Agreement, your use of the Service may be suspended or terminated, and you may incur criminal and/or civil liability for, among other things, infringement of intellectual property. IF YOU DISAGREE WITH ONE OR MORE OF THESE TERMS OR FIND THEM UNACCEPTABLE IN ANY WAY, YOU SHOULD NOT USE THE SERVICE.
PEAK reserves the right, in its sole and absolute discretion, to change, modify, update, and interpret these Terms at any time, and you agree to be bound by those changes, modifications, updates and interpretations. You should therefore review these Terms periodically to familiarize yourself with any changes, modifications, updates and interpretations.
2. License for Subscribers. Under and subject to this Agreement, you, as a Subscriber, are granted a non-exclusive, non-refundable, revocable, non-transferable, limited right to electronically access the Service via the PEAK platform (“License”). The License is subject to the following obligations, conditions and limitations, with which you must comply.
A. Authorized Users. The use of the Service requires you to register your employees designated as persons authorized to use the Service within PEAK (“Authorized Users”).
B. Usernames and Passwords. You understand, acknowledge, and agree that you are solely responsible for ensuring the confidentiality of your usernames and for the passwords of your Authorized Users, and you agree, on behalf of yourself and your Authorized Users, not to disclose to any other person or entity your usernames and/or passwords or to otherwise share your Subscription with any unauthorized entity or person.
(1) In compliance with this Section, you hereby agree to include the following language or language similar to the following, which must, at a minimum, contain the links to dataium.com set forth below.:
“This website uses a third party tracking service provided by Dataium, LLC to collect non-personally identifiable online demographical and behavioral data generated by website visitors. A data collection script provided by this service and installed on our website collects the following kinds of data: all your website session activity, including your personally identifiable information when entered into a form field such as name, phone, email, or when you arrive at our website through a link containing a unique identifier; links that you click, pages that you view, form fields that you select, and text fields that you enter. The information is used to compile your shopping activity to produce an individual shopping profile for you, which contains information about your brand preferences, and to aggregate your website behavioral data in anonymized form with all other visitors’ anonymized shopping activity data on our website to help us analyze industry trends, general shopping patterns, overall consumer demands, and website performance. If you desire more information about this service, please visit http://www.dataium.com/consumers/ You may opt-out of this data collection by clicking on this opt-out link http://www.dataium.com/options and then following the prompts.”
D. Limitations on Your Access and Prohibited Uses. You hereby understand, acknowledge, and agree that you and your Authorized Users will not —
(1). alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Service, in whole or in part; and/or
(2). remove any notices of copyright, any watermarking, or any other proprietary notices or language referring to PEAK, Outsell, Dataium, or any other third-party provider of components to the BuyerScout Service and/or
(3). copy, reproduce, publish, distribute, or redistribute any of the Service, in whole or in part, to any person who is not an Authorized User specifically covered by your Subscription; and/or
(4). sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the License or the Service, any rights granted under this Agreement, or any Intellectual Property Rights of PEAK, Outsell, Dataium, or any other third-party provider of components of the Service ; and/or
(5). provide any person other than an Authorized User or any entity access to the Service by means of your usernames and/or your passwords; and/or
(6). lend, lease, license, sublicense, transfer, assign, sell, or resell your usernames and passwords to any other person or entity; and/or
(7). decompile, disassemble, translate or reverse engineer any portion of the Service, or otherwise discover or duplicate any technology, routines, computer software, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the Service, or make or attempt to make any form of derivative work based on or including any part of the Service or its Supplementals in whole or in part; and/or
(8). make or attempt to make any commercial use or exploitation of the Service, in whole or in part; and/or
(9). circumvent, disable or otherwise interfere with the security features of the Service, or any features that prevent or restrict use or copying of any part of the Service, or enforce limitations on use of the Service; and/or
(10). use the Service to independently collect or harvest any personally identifiable information, including names and contact information regarding persons other than your own Customers, and usernames and passwords (further defined in Section 3 below) from persons other than your own Authorized Users;
(11). create multiple accounts within PEAK by manual or automated means or under false or fraudulent pretenses; and/or
(12). create or transmit unwanted electronic communications such as “spam” to other Subscribers or otherwise interfere with any other Subscriber’s proper use of the Service; and/or
(13). transmit any viruses, worms, defects, Trojan horses or other code sequence or routines of a destructive nature on PEAK; and/or
(14). use the Service to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or
(15). use any device, software or routine that you have knowledge might interfere with the proper working of the Service; and/or
(16). claim the Service or any Supplemental as your property, your creation, or your work of authorship, in whole or in part; and/or
(17). contest or dispute Outsell’s and/or Outsell’s partners’ ownership of all intellectual property rights in the Service, in whole and in part; and/or
(18). use the Service after the termination date of your License; and/or
(19). fail at any time to provide true, accurate, complete, and current contact details for your Authorized Users; and/or
(20). use the Service and/or the Content, in whole or in part, in any manner not authorized by these Terms.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ANY VIOLATION OF THE FOREGOING PROVISIONS 2.D.(1)-(20) MAY, IN PEAK’s SOLE DISCRETION AND JUDGMENT, SUBJECT YOU TO THE IMMEDIATE SUSPENSION OR TERMINATION OF YOUR LICENSE.
E. Term. The period of time in which you will be able to access the Service begins on the day you activate your Subscription and consent to this Agreement (“Term”). Unless terminated earlier, your License will expire upon the expiration of your Subscription.
F. No Transfer of Rights. You understand and acknowledge that the License grant made herein is explicitly not a sale or transfer of rights, and that the License consists solely of access to the Service pursuant to your Subscription and in accordance with this Agreement. PEAK and Outsell and its partner Dataium retain all their respective ownership rights, including all Intellectual Property Rights (as defined in Section 11), to the Service..
3. Suspension and Termination.
A. PEAK’s Right of Suspension. You understand, acknowledge, and agree that PEAK shall have the right, in its sole discretion and judgment, to suspend, immediately, with written notice to follow, your access to the Service, in whole or in part, upon PEAK’s obtaining or receiving credible evidence of any breach or awareness of an alleged breach or violation by you or by one or more of your Authorized Users of any of the provisions of this Agreement.
B. PEAK’s Rights of Termination. You understand, acknowledge, and agree that PEAK shall have the right to terminate your Subscription and your access to the Service at any time and for any reason by providing you with written notice of termination at least fourteen (14) days in advance of the Termination Date. Further, you understand, acknowledge, and agree that PEAK shall have the right to terminate your License, your Subscription, and this Agreement, immediately, with written notice to follow, upon PEAK’s obtaining or receiving credible evidence of any breach or violation by you or by one or more of your Authorized Users of any of the Terms of this Agreement.
C. Your Rights of Termination. PEAK understands, acknowledges, and agrees that you shall have the right to terminate your Subscription and your access to the Service at any time and for any reason by providing PEAK with written notice of termination at least thirty (30) days in advance of your desired Termination Date. Further, PEAK understands, acknowledges, and agrees that you shall have the right to terminate your License, your Subscription, and this Agreement, immediately upon written notice to PEAK in the event that PEAK is in breach of any of the Terms of this Agreement, and PEAK and/or Outsell has failed to cure the breach within sixty (60) days of PEAK’s receipt of your written notification of the breach.
4. Personally Identifiable Information and Data. Personally identifiable information is information about a living individual and for which there exists a reasonable expectation of personal privacy, and it includes, but is not limited to, names, addresses, telephone numbers, email addresses, and financial information (“PII”). In contrast, Data, as defined herein for purposes of this Agreement, consists of anonymized and non-personally identifiable online behavioral and demographical data generated by visitors to a website.
A. Ownership. PEAK, Outsell and its partners, including Dataium, acknowledge and agree that you are the owner of all PII and Data that you submit to or is otherwise collected by PEAK and/or Outsell and its partners, including Dataium, pursuant to your Subscription, and in order to exercise your License to access the Service, regardless of whether the PII and Data concerns your Customers or your Authorized Users. Nothing in this Agreement constitutes a transfer or conveyance to PEAK or Outsell of any ownership interest in your PII and Data.
B. License to Use PII. You hereby grant PEAK and Outsell a limited, non-exclusive, non-transferable, royalty-free license to preserve your PII and to use your PII for the sole purpose of providing the Service to you under this Agreement (“PII License”). The PII License includes the following conditions:
(1) Confidentiality. PEAK and Outsell understand, acknowledge, and agree to use the best and most currently accepted industry standards to preserve the privacy of your PII and otherwise to comply with all applicable laws in their performance hereunder, including all applicable laws concerning privacy. To that end, Outsell has administrative procedures, technical measures, and physical barriers to prevent the loss, destruction, theft, misuse, disclosure, or unauthorized access to your PII. PEAK and Outsell promise to keep your PII in strict confidence, and not to disclose or share your PII with their partners or sub-contractor service providers or with any third party except in circumstances in which you have provided your specific written permission in advance, or in circumstances in which a court having jurisdiction compels PEAK and/or Outsell to disclose PII pursuant to a judicial order (in such instances, where permitted by law, PEAK and/or Outsell shall provide you with advance written notice and an opportunity to challenge such order).
(2) Limited Sublicense Right. It is explicitly understood, acknowledged, and agreed that PEAK and Outsell shall have a limited right to grant a limited, revocable, non-exclusive, non-transferable, non-sublicensable sublicense of the PII License to its partners and sub-contractor service providers, including Outsell’s partner Dataium, to preserve and use your PII for the sole purpose of providing the Service to you under this Agreement and for no other purpose.
C. License to Use Data. You hereby grant PEAK and Outsell a limited, irrevocable, non-exclusive, non-transferable, non-sublicensable, royalty-free license to collect, gather, use, preserve, retain, archive, organize, aggregate, analyze, prepare reports on, delete copies of, and disclose your Data for the sole purposes of providing, administering, improving, and updating the Service (“Data License”). You understand, acknowledge, and agree that PEAK and Outsell may combine your Data with that of other Subscribers for purposes of improving the Service and providing you and other Subscribers with more comprehensive reports on the behavior of your Customers in comparison to other Subscribers’ Customers.
5. Availability of the Service.
A. Interruptions. PEAK and Outsell will use commercially reasonable efforts to maintain the availability of the Service twenty-four (24) hours per day, seven (7) days per week. Nevertheless, scheduled and unscheduled interruptions may occur. PEAK and Outsell do not warrant or guarantee uninterrupted availability of the Service. Normal software or hardware upgrades are typically scheduled for nights and weekends and designed to cause a minimal interruption to the Service. PEAK and Outsell will make reasonable efforts to notify you in advance of scheduled interruptions. If an unscheduled interruption occurs, PEAK and Outsell shall assign the appropriate internal and external resources to resolve the problem and return the Service to availability as soon as possible. You agree to cooperate with PEAK and Outsell during scheduled and unscheduled interruptions in the Service. In no event shall PEAK and Outsell be liable for any fees, costs damages or other amount incurred, due to scheduled or unscheduled interruptions, for the cost of temporary unavailability of the Service.
B. Accidental Loss of Data. Outsell uses commercially reasonable practices, including redundancy, failover, and backup practices, to minimize risk of loss of Data. However, PEAK and Outsell do not warrant or guarantee that such events shall not ever occur. At the termination of your Subscription, PEAK and Outsell shall return your Data to you in its standard format at no additional cost.
C. Service Warranty. PEAK and Outsell warrant and represent that they shall provide the Service in a manner consistent with this Agreement (“Service Warranty”). In the event of an error in the functionality of the Service (“Error”), PEAK and Outsell will use commercially reasonable efforts to correct the Error or re-perform the Service within 30 days after Outsell’s receipt of written notice from you of the occurrence of the Error. If, however, PEAK and Outsell are unable to correct the Error or re-perform the Service, you may terminate this Agreement upon notice to PEAK and PEAK and/or Outsell shall refund the amounts paid by you for Service for the period during which the Service were not available to you.
(1). Errors Excluded. This Service Warranty does not cover or apply to any Error caused by you or your Authorized Users’ deliberate misuse of the Service, any Error caused by use of the Service in a manner inconsistent with this Agreement, any Error caused by your third-party components of software or hardware which adversely affect the operation of the Service, or any Error caused by a force majeure event (such as a general power outage, a natural disaster, an act of war or terrorism, or a civil uprising). .
(2). Internet Problems. The Service may be subject to limitations, delays, Errors, and other problems which are the result of problems inherent in the use of the internet and electronic communications.
D. Maintenance and Development. PEAK and Outsell reserve 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 the purposes of maintaining and developing the Service. If PEAK and/or Outsell make(s) 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 PEAK and Outsell shall have no liability to you with respect to the impact such changes have on your use and enjoyment of the Services. If, on the other hand, PEAK makes material modifications which adversely affect your ability to exercise the License granted to you under this Agreement, PEAK and/or Outsell shall provide you with an appropriate pro rata refund of your subscription fees.
6. Your General Representations and Warranties. You, on behalf of yourself and of your Authorized Users for whom you are responsible, represent and warrant the following in respect of this Agreement:
A. That you have the necessary authority to enter into this Agreement; and
B. That you and your Authorized Users shall cooperate with all of the instructions, rules, and procedures of your Subscription in all of your activities in regard to exercising your License and accessing the Service throughout the Term; and
C. That you have provided and will continue to provide true, accurate, current, and complete contact details throughout the Term for your Authorized Users; and
D. That you will ensure that both you and your Authorized Users will respect and abide by all of your obligations under this Agreement, including your responsibilities under Section 2.D. of this Agreement, and perform your obligations under this Agreement diligently; and
E. That you and your Authorized Users, in performing your obligations under this Agreement, will comply with all applicable laws and regulations.
7. PEAK’s and Outsell’s General Representations and Warranties. PEAK and Outsell represent and warrant the following in respect of this Agreement:
A. That they are authorized and have all authority necessary to enter into and perform under this Agreement; and
B. That the Service does not infringe any intellectual property rights of any third party; and
C. That they will use best efforts and all reasonable best industry practices and technical measures to safeguard and preserve the privacy and confidentiality of your PII; and
D. That they will not disclose your PII publicly or to any third party that is not bound to comply with this Agreement through the PII License; and
E. That they will respect and abide by all of their obligations under this Agreement and will perform their obligations under this Agreement diligently; and
F. That they will comply with all laws and regulations applicable to this Agreement.
8. NO OTHER WARRANTIES. PEAK AND OUTSELL’S REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES PROVIDED BY PEAK AND OUTSELL WITH RESPECT TO THE SERVICE, AND ANY OTHER ITEM OR SERVICE PROVIDED TO YOU BY PEAK AND/OR OUTSELL AS PART OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT ONLY TO THE EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT, ALL SERVICE, THE CONTENT, AND ANY OTHER ITEMS ARE PROVIDED ON AN “AS-IS,” AND “AS-AVAILABLE” BASIS. PEAK AND OUTSELL EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.. PEAK AND OUTSELL RESERVE THE RIGHT TO MODIFY AND OR REMOVE ANY PORTION OF THE SERVICE, AT ANY TIME, WITH OR WITHOUT NOTICE. PEAK AND OUTSELL DO NOT REPRESENT, WARRANT, OR GUARANTY TO SUBSCRIBER OR TO ANY OF SUBSCRIBER’S AUTHORIZED USERS ANY PARTICULAR RESULTS TO BE ACHIEVED BY SUBSCRIBER AS A DIRECT RESULT OF SUBSCRIBER’S SUBSCRIPTION TO THE SERVICE.
A. Your Indemnification Obligation. You shall indemnify and hold harmless PEAK and Outsell, their officers, directors, employees, agents, and representatives, partners, and subcontractors from, and, at your expense, shall defend PEAK and Outsell and Outsell’s partners and subcontractors against any liability, loss, damage or expense (including reasonable legal fees and costs) that they incur or become liable for as a result of any breach by you or your Authorized Users of any of the Terms of this Agreement, or any negligent or willful misconduct by you or your Authorized Users.; You shall reimburse PEAK and/or Outsell for their expenses under this Section as they are incurred. PEAK and/or Outsell shall have the right, at their own expense, to participate in the defense of any claim, action or proceeding against which they are indemnified hereunder. You, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of PEAK and/or Outsell, enter into any settlement which adversely affects the rights of PEAK and/or Outsell or which does not include, as an unconditional term, a release granted to PEAK and/or Outsell of all liabilities in respect of such claim, action or proceeding.
B. PEAK’s and Outsell’s Indemnification Obligation. PEAK and Outsell shall indemnify and hold harmless you, your officers, your directors, your employees, your agents, and your representatives from, and, at PEAK’s and Outsell’s expense, shall defend you against any finally adjudicated claim, liability, loss, damage or expense, including reasonable legal fees and costs (collectively “Claim”), which Claim is brought against you by a third party and that arises as a result of any breach by PEAK and/or Outsell and its partners, including Dataium, of their representations and warranties or any other Terms of or obligations under this Agreement. PEAK and/or Outsell, as appropriate, shall assume control of the defense of the Claim with counsel of their own choosing, respectively. You shall have the right, at your own expense, to participate in the defense of any Claim. In the defense of any such Claim arising under this Section, PEAK and Outsell shall not, except with your written consent, enter into any settlement which adversely affects your rights or which does not include, as an unconditional term, a release granted to you of all liabilities in respect of such Claim. For purposes of clarity, in the event of any conflict between this Section 9.B. and PEAK’s master services agreement with Outsell (the “DSP MSA”), the terms of the DSP MSA shall prevail.
10. Intellectual Property Rights Ownership. “Intellectual Property Rights” means any and all rights belonging to PEAK and/or Outsell and/or their respective partners and subcontractors, including Dataium, and existing under patent law, copyright law, semiconductor chip protection law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, in any intellectual property, which includes, but is not limited to, patentable inventions, ideas, and processes, trade secrets, trademarks, trade names, copyrightable works, and any confidential information. As between you, PEAK, and Outsell and/or their respective partners and subcontractors, including Dataium, PEAK and Outsell and/or their respective partners and subcontractors, including Dataium, retain all their respective titles, interests, and ownership in the Service and the Supplementals included in the Service, and you understand and acknowledge that neither you nor your Authorized Users acquire any ownership in any Intellectual Property Rights regarding the Service or the Supplementals included in the Service under this Agreement.
A. Limited Trademark License. You hereby grant to PEAK and to Outsell a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use your primary or house trademark(s) for the sole purpose of reproducing the trademark(s) in the Content and Service that Outsell provides to you under this Agreement and solely to the extent they are viewable by You as part of the Services.
11. Third-Party Components and Operating System Environments. You understand and agree that your use of any and all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items provided by you in conjunction with the Subscription and exercising your License are solely and exclusively your responsibility, and that PEAK and Outsell have no responsibility for such third-party components, services, or your relationships with such third parties. PEAK and Outsell do not represent or warrant that the Service is compatible with any specific third-party operating system hardware or software. You agree that you shall at all times comply with the lawful terms and conditions of your agreements with such third parties, and you acknowledge and agree that any failure on your part to comply with your obligations under such agreements which adversely affects your ability to access the Service shall be your sole responsibility. You acknowledge and agree that you are responsible for providing and maintaining an operating environment as reasonably necessary to accommodate the Subscription.
12. Third-Party Beneficiaries. You understand, acknowledge, and agree that Outsell and Outsell’s partners and sub-contractors, including Dataium, whom provide services as part of this License, are third-party beneficiaries of this Agreement..
13. General Provisions. You may not assign, transfer, or license this Agreement, in whole or in part, without PEAK’s prior written consent. Except as otherwise provided, all notices, authorizations, and requests in connection with this Agreement shall be in writing. This Agreement contains your entire understanding with PEAK with respect to the subject matter and supersedes any and all prior oral or written proposals or understandings. No modification of this Agreement is binding unless in writing and signed by you, your Subscriber, and PEAK. This Agreement shall be governed by and construed in accordance with the laws of New York, and you hereby consent and absolutely agree to the jurisdiction of state and federal courts sitting in New York County, New York for resolving any disputes arising under this Agreement which cannot be resolved by negotiations between you and PEAK. If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the Agreement shall remain in full force and effect as to the remaining provisions. Neither this Agreement, nor any terms and conditions contained herein shall be construed as creating a partnership, joint venture, franchise or agency relationship between you and PEAK.