End User License Agreement
YOU MUST READ THIS CUSTOMER AGREEMENT (“AGREEMENT”) IN ITS ENTIRETY BEFORE UTILIZING THE HOMENET IOL PRODUCT(S) LISTED BELOW. BY SIGNING THIS END USER LICENSE AGREEMENT WITH HOMENET, YOU ARE, AMONG OTHER THINGS, EXPRESSLY INDICATING YOUR CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ON WHICH YOU ACCESS THE HOMENET IOL PRODUCT(S). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A DEALERSHIP OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY. 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 YOU MAY NOT USE THE HOMENET IOL PRODUCT(S).
WHEREAS, Hyundai Motor America (“HMA”) has entered into an Inventory Services License Agreement (“Reseller Agreement”) with HomeNet to make available to participating dealerships the HomeNet IOL Product(s), for the purpose of incorporating dealerships’ inventory data into the HMA Corporate Listings Website;
WHEREAS, HMA and HomeNet wish to offer Dealer the opportunity to use such IOL Product(s); and,
WHEREAS; Dealer desires to utilize the IOL Product(s), pursuant to these terms and conditions between Dealer and HMA;
THEREFORE, Dealer hereby agrees as follows:
HOMENET IOL PRODUCT(S): HomeNet Inventory Services
1. License to IOL Product(s). HomeNet grants to Dealer and its Authorized Users a limited, non-exclusive and non-transferable right and license to use and access the IOL Product(s) and any Generated Content (as defined in Section 3), in each case solely for the purpose of managing Dealer’s online vehicle inventory and related data for the Dealer Location. The license granted in this Section 1 includes access to basic email and telephone technical support from HomeNet with respect to the IOL Product(s). The license does not include any customization, programming or software or application development of any kind. Any such additional services must be agreed to by the parties in a separate written agreement. For purposes of this Agreement, an “Authorized User” means any officer or employee of Dealer that has been issued a username and password to access the IOL Product(s) for and on behalf of Dealer, including any Dealer Admin User (as defined herein). Dealer acknowledges that certain third parties have granted HMA certain rights in connection with operation of, or integration of or with, an IOL Product(s) (a “Third Party Licensor”). Dealer further acknowledges that the IOL Product(s) may incorporate program code, data, files or other information as a direct result of HomeNet’s (or its Affiliate’s) integration with a source of vehicle inventory-related data, including Dealer’s management system, via an interface governed by an agreement between HomeNet and a Third Party Licensor (“Integrated Information”). Dealer shall be responsible and liable for all actions that may be taken by its Authorized Users in connection with their use of any IOL Product(s) (including Integrated Information), the HomeNet Site or any Generated Content, including any unauthorized use of any IOL Product(s) or Generated Content, or any other violation of this Agreement.
2. Access to IOL Product(s)(s). Dealer and its Authorized Users may access the IOL Product(s) to which Dealer is subscribed through the HomeNet website located at www.HomeNetAutomotive.com, or such successor or replacement website or URL as HomeNet may designate for such purpose (the “HomeNet Site”). At Dealer’s request, HomeNet will issue to Dealer a username and password to access the IOL Product(s) as the admin user of such IOL Product(s) (the “Dealer Admin User”). The Dealer Admin User shall have the ability to issue usernames, passwords and other login credentials for the IOL Product(s) to designated Authorized Users in accordance with this Agreement and such other limitations as HomeNet may establish from time to time.
HomeNet may also issue additional usernames, passwords and other login credentials to designated Authorized Users from time to time. Any username, password or other login credential issued by Dealer (or any Dealer Admin User) or HomeNet to any Authorized User for use in accessing any IOL Product(s) (including Integrated Information) or the HomeNet Site is confidential and may not be shared with any third party. Any unauthorized use or disclosure of any Dealer or Authorized User account information shall be immediately reported to HomeNet in writing.
4. Restrictions. Neither Dealer nor any Authorized User shall: (a) use or access any IOL Product(s) (including any Integrated Information) or the HomeNet Site or use or publish any Generated Content in a manner or for any purpose not expressly authorized under Section 2 or 3; (b) sell, rent, lease, sublicense, transfer, lend, pledge, distribute or provide access to or otherwise make available to any third party any IOL Product(s) (including any Integrated Information) or any documentation or other information relating thereto; (c) copy, duplicate, reproduce, modify, translate, reverse engineer, decompile or disassemble any IOL Product(s), or develop or create any derivative works of or relating to any IOL Product(s) or any underlying technology or intellectual property (including any Integrated Information) comprising any IOL Product(s); (d) scrape or data-mine any IOL Product(s), the HomeNet Site or the website of any Affiliate of HomeNet (including through the use of any robot, spider or other automated device); (e) frame or utilize framing techniques to enclose any portion of any IOL Product(s) or the HomeNet Site; (f) publish, transfer or export any Generated Content or other data (including any Integrated Information) from any IOL Product(s) or the HomeNet Site, other than by using the content export function provided as part of the applicable IOL Product(s); (g) use or permit the use of any IOL Product(s)s (including any Integrated Information) for or in connection with any service bureau or outsourcing context; (h) violate any Law or any Intellectual Property Rights or other rights of any third party in connection with any use of or access to any IOL Product(s) (including any Integrated Information) or the HomeNet Site, or any use, display or publication of any Generated Content; (i) challenge, cooperate with any third party in challenging, or assist any third party in challenging any right or interest that HomeNet, its Affiliates, or its Third Party Licensors may have in any IOL Product(s) or in the HomeNet Site, or in any underlying technology, processes or intellectual property (including any Integrated Information) comprising any IOL Product(s) or the HomeNet Site, or in any HomeNet Mark; or (j) take any action, the intent or likely effect of which would be to cause harm to the business or reputation of HomeNet or its Affiliates.
5. Proprietary Rights. Except for the rights expressly granted to Dealer and its Authorized Users under Section 2, neither Dealer nor any Authorized User shall have any right, title or interest in or to any IOL Product(s) or any underlying technology or intellectual property comprising any IOL Product(s) (including Integrated Information), and nothing in this Agreement or in any Order Form shall effect a transfer of any patent, trademark, copyright or other intellectual property or proprietary right (collectively, “Intellectual Property Rights”), or any ownership right, from HomeNet, HMA, or their Affiliates, on the one hand, to Dealer or any Authorized User or any other third party, on the other hand. Dealer acknowledges that no rights or licenses are being granted to Dealer or any Authorized User with respect to any name, logo, trademark or service mark of HomeNet or any of its Affiliates (the “HomeNet Marks”), and Dealer shall obtain the prior written consent of HomeNet prior to any use or display of any HomeNet Mark by Dealer or any Authorized User. HomeNet and its Third Party Licensors, as the case may be, shall retain all Intellectual Property Rights and all ownership rights in and to the IOL Product(s) (including any Integrated Information), the HomeNet Site and all HomeNet Marks. If, at any time, Dealer becomes aware of any actual or potential infringement or unauthorized use of any IOL Product(s) or HomeNet Mark or any other violation or infringement of any Intellectual Property Rights of any HomeNet Related Party (as defined below), Dealer shall immediately notify HomeNet of such infringement or unauthorized use in writing. For purposes of this Agreement, “Affiliate” means, with respect to either party, a business entity that, directly or indirectly, controls, is controlled by, or is under common control with, such party. For purposes of this definition only, the term “control” means legal, beneficial, or equitable ownership, directly or indirectly, of a business entity.
6. Feedback. Any information, suggestions, feedback, ideas, comments and other materials that Dealer or any Authorized User may disclose or offer to HomeNet on or through the HomeNet Site in connection with or otherwise relating to any IOL Product(s) or any Generated Content, or in any underlying technology or intellectual property comprising any of the foregoing (collectively, “Feedback”), are submitted without any restrictions or expectation of confidentiality. Dealer (on behalf of itself and its Authorized Users) hereby (a) assigns to HomeNet without compensation or further obligation of any kind, all rights and interests now known or hereafter existing to use, allow others to use, or assign the right to use, any Feedback, and (b) agrees that Feedback may be used by HomeNet or its Affiliates (or any successor or transferee of any of the foregoing) without restriction and for any purpose whatsoever, commercial or otherwise, including, without limitation, any reproduction, modification, adaptation, publication, transmission, public performance or display of any Feedback, or the creation of any derivative works of or relating to the Feedback. To the extent any use or implementation of any Feedback would require a license to any intellectual property of Dealer or any Authorized User, Dealer hereby grants to HomeNet (on behalf of itself and its Authorized Users) a perpetual, worldwide, non-exclusive, irrevocable, royalty free and fully paid-up and transferable right and license to use and display such intellectual property for the purpose of using or implementing any Feedback.
7. Dealer Inventory Data. (a) Dealer agrees that HomeNet and its Affiliates may receive vehicle inventory and related data from Integrated Information sources, including, but not limited to, Dealer’s management system or similar platform used in connection with Dealer’s automotive business, which may include vehicle specifications, Vehicle Identification Number (“VIN”) data, vehicle pricing information, photographs, videos, vehicle accolades and awards from consumer resources, and other data and information relating to Dealer’s vehicle inventory (collectively, “Dealer Inventory Data”). HomeNet and its Affiliates may use the Dealer Inventory Data for or in connection with (a) VIN decoding (as required for the applicable IOL Product(s)s); (b) the aggregation of data and information (including Dealer Inventory Data) for the purpose of assembling and developing Generated Content; and (c) publishing or otherwise distributing or disseminating Generated Content to Dealer-specified digital marketing destinations, or otherwise in connection with providing any inventory management or other Dealer-directed services. Dealer shall promptly notify HomeNet in writing in the event that Dealer identified any errors or omissions with respect to any Dealer Inventory Data. Dealer hereby authorizes and directs HomeNet and/or its Affiliates to syndicate Dealer Inventory Data to www.autotrader.com and/or www.kbb.com, and Dealer authorizes HomeNet and/or its Affiliates to create and display advertisements on behalf of Dealer and to use Dealer data received through IOL Products in connection therewith, all as further set forth in Cox Advertiser Relationship Additional Terms and Conditions found at: https://www.coxautoinc.com/terms/wp-content/uploads/sites/3/Cox-Advertiser-Relationship-Additional-Terms.pdf.
8. Initial Subscription Term. This Agreement shall commence on the date on which Dealer or any Authorized User first uses or accesses any IOL Product(s), and unless Dealer’s subscription(s) to the IOL Product(s) is earlier terminated in accordance with Section 9, shall continue thereafter for the duration of the Initial Subscription Term, after which this Agreement and Dealer’s subscription to the applicable IOL Product(s)(s) shall automatically renew on a month-to-month basis until terminated or cancelled by a party pursuant to Section 9. For purposes of this Agreement, the “Initial Subscription Term” means, with respect to any subscription to an IOL Product(s), a term of one (1) year, commencing on the date on which Dealer or any Authorized User first uses or accesses the applicable IOL Product(s).
9. Termination/Cancellation. This Agreement may be terminated by HomeNet, immediately, in the event that it believes that Dealer or any Authorized User has or is violating any of the restrictions or other agreements set forth in Section 2, 3, 4, 5, 7 and 13, or in the event Dealer ceases to be a participant in the applicable HMA program. Additionally, Dealer acknowledges that HomeNet shall have the right at any time to cease offering any IOL Product(s) to Dealer or to modify or change any IOL Product(s) or any feature or functionality thereof (including, without limitation, in any case where HomeNet is no longer able to provide Integrated Information, or where HomeNet believes that an IOL Product(s) or any feature or functionality thereof may infringe or otherwise violate the Intellectual Property Rights of any third party, or any Law), in each case without notice to Dealer. Dealer may terminate or cancel its subscription to the IOL Product(s) at any time during the Initial Subscription Term or thereafter by providing at least thirty (30) days’ prior written notice to HomeNet in accordance with this Section 9.
10. Effect of Termination. Upon any termination or expiration of this Agreement, all rights, obligations and licenses granted to Dealer and its Authorized Users hereunder shall immediately and automatically terminate. In addition to the foregoing, Dealer shall (i) immediately discontinue any access or use of any IOL Product(s) (including any Integrated Information); (ii) if applicable, promptly pay all accrued and outstanding amounts due under this Agreement; (iii) delete Confidential Information of HomeNet, HMA, or their Affiliates from computer storage or any other media including, but not limited to, online and off-line libraries; and (iv) return to HomeNet or, at the HomeNet’s option, destroy, all physical copies of any Confidential Information of HomeNet or its Affiliates. The provisions of Sections 3, 4, 5, 6, 7, 9, and 11 through 16, 18 and 19 shall survive any termination or expiration of this Agreement.
11. Representations and Warranties. Dealer represents and warrants that (a) it is a corporation, limited liability company or sole proprietorship that has been duly organized (in the case of a corporation or limited liability company) and that is validly existing and in good standing under the Laws of the state in which it was organized (in the case of a corporation or limited liability company); (b) it has obtained and shall maintain the power and authority to enter into this Agreement and any Order Form and to undertake its obligations hereunder and thereunder, in each case without the consent of any other person or entity; (c) it is not a party to any contract or agreement or any litigation that would prohibit or restrict it from entering into this Agreement or any Order Form or otherwise performing any of its obligations hereunder or thereunder; (d) it will comply at all times with all Laws, including all Laws relating to unfair competition, deceptive trade practices and false advertising, and any consumer protection Laws (and it shall provide HomeNet with evidence of such compliance upon the request of HomeNet); (e) it has all rights and licenses necessary to provide the Dealer Inventory Data to HomeNet, HMA, and their Affiliates as provided for herein, and the use of the Dealer Vehicle Data by HomeNet, HMA, and their Affiliates as set forth in Section 7 does not and will not infringe or violate the Intellectual Property Rights of any third party; and (f) it shall inform all Authorized Users and Dealer Representatives that they are subject to the terms and provisions set forth in this Agreement.
12. Indemnification. Dealer shall, at its expense, defend, indemnify and hold harmless HomeNet, HMA, and their Affiliates, and their respective Third Party Licensors and data and service providers, and the officers, employees, representatives and agents of each of the foregoing (collectively, the “Indemnified Parties”), from and against any and all claims, judgments, losses, damages, demands, payments, fines, costs, expenses (including reasonable attorneys’ fees and court costs), liabilities and recoveries of any nature or description incurred by any Indemnified Party, in each case to the extent arising from or in any way relating to (a) any breach by Dealer or any of its officers, employees, representatives or agents (collectively, the “Dealer Representatives”), or any breach by any Authorized User, of any representation, warranty, covenant or other provision of this Agreement; (b) any use of or access to any IOL Product(s) or the HomeNet Site; (c) the use or publication of any Generated Content; or (d) any claim by a retail customer of Dealer or any other purchaser of a Dealer vehicle.
13. Confidential Information.
(a) Dealer agrees not to disclose (or allow to be disclosed by any Authorized User or Dealer Representative), and not to otherwise use or allow to be used other than as set forth in this Agreement, any Confidential Information of HomeNet, its Affiliates, or Third Party Licensors. Dealer shall use a commercially reasonable degree of care in maintaining the confidentiality of any Confidential Information. Dealer may disclose Confidential Information only to those of its employees that have a reasonable need to access the Confidential Information in connection with Dealer’s performance under this Agreement; provided, however, that each employee of Dealer to whom any Confidential Information is being disclosed shall, prior to any such disclosure, be subject to written confidentiality restrictions with respect to the Confidential Information that are at least as restrictive as those obligations and restrictions set forth in this Section 15. Dealer shall be fully responsible and liable for any violation of this Section 15 by any Authorized User or Dealer Representative and any other person to whom Dealer has provided or otherwise made available any Confidential Information.
(b) For purposes of this Agreement, “Confidential Information” means all information and materials that are provided or otherwise disclosed by or on behalf of HomeNet, HMA, or their Affiliates that are either (i) designated as “Confidential” or “Proprietary” by HomeNet, HMA, or their Affiliates, or (ii) in any way related to any IOL Product(s) or any aspect of the business or operations of HomeNet, HMA, or their Affiliates, including, without limitation, any Integrated Information and any information or materials relating to the operations, customers, contractors, distributors, software, technology, products, services or marketing plans of HomeNet, HMA, or their Affiliates. Notwithstanding the foregoing, “Confidential Information” shall not include any information or materials that (x) are or become publicly known or available other than as a result of any wrongful act by Dealer or any of its Affiliates or any Authorized User or Dealer Representative, including any violation of this Agreement, (y) are known to or in the possession of Dealer prior to their disclosure by HomeNet, HMA, or their Affiliates, as evidenced by written documents in existence prior to any such disclosure, or (z) are or become available to Dealer from a third party not bound by any confidentiality or other obligations that would prohibit such disclosure.
14. Remedies. Dealer acknowledges and agrees that the wrongful disclosure of any Confidential Information or any unauthorized use of any IOL Product(s) or Generated Content would cause irreparable injury to HomeNet, HMA, and their applicable Affiliates and Third-Party Licensors, and that remedies other than injunctive relief would be inadequate. Accordingly, HomeNet and HMA shall have the right to obtain equitable and other injunctive relief to prevent any wrongful disclosure of any Confidential Information or any unauthorized use of any IOL Product(s) (including any Integrated Information) or Generated Content (in each case without the posting of any bond or similar security), as well as such damages and other relief to which HomeNet, HMA, its Affiliates, or its Third Party Licensors may be entitled under this Agreement or pursuant to any Law. Third Party Licensors shall be considered third party beneficiaries of this Agreement having the right to enforce its rights hereunder directly against Dealer.
15. DISCLAIMER. NEITHER HOMENET, HMA, NOR ANY HOMENET RELATED PARTY MAKES ANY REPRESENTATION OR WARRANTY TO DEALER OR ANY OTHER PERSON WITH RESPECT TO ANY IOL PRODUCT(S) (INCLUDING ANY INTEGRATED INFORMATION), THE HOMENET SITE OR ANY GENERATED CONTENT, EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF TITLE, SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY TYPE OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER HMA NOR HOMENET MAKES ANY REPRESENTATION OR WARRANTY THAT ANY IOL PRODUCT(S) (INCLUDING ANY INTEGRATED INFORMATION) OR THE HOMENET SITE WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION OR IN ACCORDANCE WITH ANY SPECIFICATIONS OR DOCUMENTATION.
16. LIMITATION OF LIABILITY. HOMENET, HMA. AND THE HOMENET RELATED PARTIES SHALL IN NO EVENT BE LIABLE TO DEALER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, MULTIPLE, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE IOL PRODUCT(S) (INCLUDING ANY INTEGRATED
INFORMATION), THE HOMENET SITE OR ANY GENERATED CONTENT, EVEN IF HMA, HOMENET OR THE APPLICABLE HOMENET RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, THE AGGREGATE LIABILITY OF HOMENET, HMA, AND THE HOMENET RELATED PARTIES UNDER THIS AGREEMENT SHALL BE EXPRESSLY LIMITED TO AN AMOUNT EQUAL TO ONE THOUSAND DOLLARS ($1000).
17. Usage Data. Certain data and information may be generated and collected by HomeNet in connection with Dealer’s use of the IOL Product(s), which may include vehicle or inventory data, usage statistics or analytics and other data and information gathered, generated or received by HomeNet in connection with Dealer’s use of the IOL Product(s)(s) (“Usage Data”). Notwithstanding the foregoing, the Usage Data will not include any personally identifying information of any retail customer of Dealer. Dealer acknowledges and agrees that HomeNet and its Affiliates shall have the right to make use of such Usage Data for its internal business purposes, provided that HomeNet shall not disclose to any third party (other than its Affiliates and its and their respective employees and representatives) any Usage Data, except as provided for in this Agreement or in any Order Form, unless such Usage Data has been aggregated with the Usage Data of other dealer subscribers so as not to identify Dealer as the source or subject of such Usage Data.
18. Audit Right. To assist HMA in verifying Dealer’s compliance with the terms and conditions set forth in this Customer Agreement, Dealer will, upon reasonable request by HMA and at all reasonable times during the Term and for three (3) years thereafter: (a) make available to HMA or its authorized representatives for inspection and review such books, records and other materials of Dealer as are necessary for HMA to verify Dealer’s compliance with the terms and conditions described above (in each case to HMA’s reasonable satisfaction); (b) give HMA and its authorized representatives reasonable access, during regular business hours, to Dealer’s employees and other representatives in connection with such audit; and (c) provide such computer and Internet access, office space, telephone and photocopying and service as may be necessary or desirable for HMA and its authorized representatives to conduct such audit. The costs of the audit will be borne by HMA unless the audit reveals that Dealer is in material breach of this Agreement, in which case (i) HMA may terminate this Agreement immediately, (ii) Dealer will pay HMA on demand for any costs incurred in connection with the audit, and (iii) HMA may pursue any other rights or remedies available under this Agreement, at law, in equity or otherwise.
19. Miscellaneous. Dealer may not assign this Agreement or any subscription or other rights or obligations hereunder (whether by operation of law, by merger or otherwise), without the prior written consent of HMA, which consent may be withheld in HMA’s discretion. This Agreement shall not be interpreted strictly against any party by virtue of such party’s role in preparing or drafting this Agreement. If any provision of this Agreement shall be invalid or prohibited by Law, such invalidity or prohibition shall be construed as if such invalid or prohibited provision had not been included herein and such invalidity or prohibition shall not affect the remainder of such provision or any other provision of this Agreement. HMA shall not be liable for the failure to perform any obligation under this Agreement to the extent such failure is attributable to any act of God or other condition or event beyond its reasonable control. This Agreement represents the entire agreement of the parties with respect to Dealer’s use of the IOL Product(s) and the other subject matter hereof, and supersedes all prior agreements and understandings between the parties with respect to such matters, whether oral or written. Except for the specific rights and remedies granted to a Third Party Licensor hereunder, this Agreement is not intended to confer upon any Authorized User or any other person or entity (other than HMA and Dealer) any rights or remedies hereunder. No waiver by HMA of any breach of this Agreement shall be deemed a waiver of any other or subsequent breach. This Agreement and the rights of the parties hereunder will be governed by and interpreted in accordance with the internal laws of the State of Michigan, without regard to its conflict of laws rules or choice of law principles which would require the application of the law of any other jurisdiction. Exclusive jurisdiction and venue for any claims made by either party against the other will be the courts of the State of Michigan located in Oakland County and/or the United States District Court for the Eastern District of Michigan, and the parties irrevocably consent to the jurisdiction of such courts.
20. Counterparts. This Agreement may be executed by the parties in counterparts, all of which, when taken together, shall constitute a fully executed version of this Agreement. This Agreement, or a counterpart, thereof, may be executed and delivered by telecopier, facsimile or any other electronic transmission, including, without limitation, a scanned version in .pdf format, and the telecopier, facsimile or any other electronic transmission of a signature to another party or parties (or to their respective legal representatives) shall be of the same force and effect as the delivery of an original signature.