End User License Agreement
This End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and DriveCentric, Inc., an Indiana corporation (“Company”). This Agreement governs your use of the DriveCentric application and software as a service (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
If you are using the Application on an Apple branded product that you own or control (an “Apple Device”; all Apple Devices are Devices under this Agreement), then (i) your use of the Application is also subject to the Apple Terms and Conditions (collectively, “Apple Terms and Conditions”), available on the Apple website (hhtp://www.apple.com/); and (ii) in the event of a conflict between the terms of this Agreement and any Apple Terms and Conditions, the Apple Terms and Conditions shall govern.
1. License Grant. Subject to the terms of this Agreement, including but not limited to those additional terms set forth on Addendum A and Addendum B, which are attached hereto and incorporated herein (in each case as applicable to the End User), and any software as a service agreement or other terms and conditions (in either case, the “Dealer Agreement”) agreed upon between the Company and the vehicle dealership which has purchased your rights to this Agreement (“Dealer”), Company grants you a limited, non-exclusive, and nontransferable license to:
(a) use the Application on a mobile device or computer owned or otherwise controlled by you or Dealer (“Device”) strictly in accordance with the Application’s documentation; provided, however, that if you use the Application on an Apple Device, you shall use the Application only as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions (the “Usage Rules”), and notwithstanding anything to the contrary in the Apple Terms and Conditions, the Application may not be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing and
2. License Restrictions. Licensee shall not:
(a) copy the Application, except as expressly permitted by this license (and the Usage Rules, if applicable);
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason;
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application;
(g) use the Application on any Device that you do not own or control, and notwithstanding anything to the contrary in the Apple Terms and Conditions, the Application may not be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing;
(h) distribute or make the Application available over a network where it could be used by multiple devices at the same time; or
(i) use any unauthorized third-party programs or software that interact with the Application in any way, except to the extent expressly authorized by Company.
3. Access by Third Party Service Providers. If you are a third party service provider for any Dealer, by using the Application, you agree (i) to be bound by the Dealer Agreement, including, without limitation, all confidentiality, security and privacy provisions hereof, and to access and use the Application solely in your capacity as a third party service provider of Dealer and only for the purposes of performing services for Dealer with the results or deliverables of such services being used solely in Dealer’s internal business operations and in accordance with the terms and conditions of the Dealer Agreement and this Agreement; and (ii) you are directly responsible and liable to DriveCentric for your use of the Application and for any acts or omissions with respect thereto.
4. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement and the Dealer Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
5. Collection and Use of Your Information.
(b) You represent and warrant that for purposes of the data that may be accessed by Company pursuant to this Agreement You have provided any required privacy notices to Your customers as required by applicable law, including the Gramm-Leach-Bliley Act and its implementing regulations (“GLBA”), and to the extent applicable, the privacy laws of any state, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), and any other relevant privacy laws Canada or of any province of Canada or other relevant jurisdiction.
7. Text Messaging. According to the Federal Communications Commission, text messages are covered by the Telephone Consumer Protection Act of 1991 (47 U.S.C. 227 et seq.) (the “TCPA”). By using Company’s text messaging services, you are confirming that you have prior express written consent of each recipient (as defined by the TCPA) to send the text messages. You further reaffirm each of your representations and warranties set forth in this Agreement and the Dealer Agreement, including the warranty to comply with the TCPA and other applicable law. As set forth in this Agreement, if any breach or alleged breach of those warranties gives rise to a third-party action, you will indemnify Company.
8. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device settings, when your Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
9. Third-Party Materials. The Application or any components thereof may display, include, or make available third-party content (including data, information, applications, program code and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. All Third-Party Materials are provided hereunder without any warranty of any kind, including (without limitation) any warranty of merchantability or fitness for a particular purpose. All Third-Party Material licensors are intended as third party beneficiaries of this Agreement, and your obligations hereunder cannot be modified or terminated without the written consent of such licensors (except as otherwise provided in Section 10 below).
10. Term and Termination.
(a) The term of this Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 10.
(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Devices and by ceasing to use the Website, Content and Services.
(c) Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion or upon the termination of the Dealer Agreement. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application, Website, Content and Services and delete all copies of the Application from your Devices and account.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity.
11. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
WITH RESPECT TO THE CHITCHAT FEATURE OF THE APPLICATION: THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN ACTION OF CONTRACT, TORT, OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU OR DEALER FOR YOUR USE OF THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
13. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application, Website, Content or Services, including any such misuse in violation of the TCPA, the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.) (the “FDCPA”), or any other state or federal law, including any state or federal law that is similar to the TCPA or the FDCPA), or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
14. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You also agree that you will not use this Application for any purposes prohibited by United States law.
15. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
16. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Missouri. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Missouri in each case located in St. Louis County, Missouri, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
17. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
20. Complete Agreement. This Agreement, as it may be subject to any software as a service agreement or other terms and conditions, represents the complete agreement between you and Company with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements between you and Company; provided, however, that if you are using the Application on an Apple Device, this Agreement shall coexist with, and shall not supersede, the Apple Terms and Conditions. This Agreement may be amended by Company from time to time in the sole discretion of Company. Your continued use of the Application after any such amendment shall be deemed acceptance of any changed terms therein.
21. Contact. If you have any questions, complaints or claims concerning the Application or this Agreement, please direct them to:
Attn: David Fultz
Updated October 4th, 2023.