Legal
Services & License Agreement
The Mobile Dealer Data Services & License Agreement and End User License Agreement (Exhibit A).
The Mobile Dealer Data Services & License Agreement and End User License Agreement (Exhibit A).
This Agreement is entered into by Mobile Dealer Data, LLC (“MDD”) and the customer named above (“Customer”) for the purpose of Asset Location, Actionable Data and Business Optimization of the Customer’s dealership (“Dealership”).
1. MDD Vehicle Location Management Services. MDD will provide vehicle location management services (the “Services”) for Customer in accordance with the terms and conditions hereof. The Services consist of the remote collection of asset data at the Dealership by way of MDD’s devices (“Devices”), transmission of the data from the Dealership to MDD, compilation and analysis of the data by MDD software, and access of the data by the Customer through an Internet portal or mobile apps provided by MDD.
2. MDD Software. As an integral part of the Services, MDD will host, manage, operate and maintain the MDD Software for remote electronic access and use by Customer 24 hours per day, seven days per week, every day of the year, except for (a) planned downtime or degradation due to a Force Majeure event; (b) misuse of the MDD Software by Customer; and (c) any other exception stated herein. The “MDD Software” is the MDD software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that MDD provides as part of the Services. MDD Software is hosted and accessed by Customer through an Internet portal (“MDD Portal”). Customer’s use of the Software is subject to the terms and conditions of the End User License Agreement attached as Exhibit A.
3. MDD Equipment. To allow for use of the Services and the MDD Software, MDD will provide Customer with readers, transmitters, and other such equipment (“Equipment”) as needed to utilize the Services for the number of vehicles tracked at the Dealership. Customer will order Equipment using MDD’s standard ordering processes. MDD will ship Equipment to Customer or Dealership (as directed by Customer) via standard ground shipping with a carrier selected by MDD. Customer is responsible for all shipping charges.
4. Orientation, Training and Support. MDD will provide Customer orientation and training with regard to the use of the Services at times jointly selected by MDD and Customer. Online training is included and will occur at a time jointly selected by MDD and Customer. Ongoing training and support will be provided by MDD at Customer’s request. Onsite training is available at the Customers expense.
5. Installation and Validation. Upon execution of this Agreement, MDD will work with Customer to establish a mutually acceptable timeline to deliver and install Equipment and begin the Services. Validation of the operation of the Services will occur on or before the State Date. This date is subject to and contingent upon any factors beyond the control of MDD.
6. Services Review. Within 60 days of the Start Date, MDD and Customer will meet to discuss the Services and conduct a performance review. No less than quarterly, MDD and Customer will conduct a performance review with a dashboard showing the KPIs the dealership is monitoring.
7. Equipment Repair and Replacement. MDD will not be liable for any failure of, or delay in, the delivery of any Device. At its option, MDD will repair or replace any Device that fails to work properly. If the Device was used improperly or not in accordance with instructions provided by MDD, Customer will pay MDD for the cost of the repair or replacement; otherwise, such repair or replacement shall be performed at MDD’s expense. MDD will warranty the reader network equipment for 5 years for the Effective Date. MDD will warranty beacons for 1 year from the Effective Date. Customer is responsible for lost, stolen or damaged equipment.
8. Warranties. MDD makes the following warranties to Customer: (a) during the term of this Agreement, MDD Software and the Equipment, when used under normal and intended usage conditions, will perform substantially as necessary for the performance of the Services and in substantial compliance with any performance specifications set forth for them in a MDD instruction manual and training; and (b) when used for their intended purposes, neither MDD Software nor the Equipment will infringe upon any intellection property right belonging to any person. MDD makes these warranties on the following conditions: (i) MDD’s sole and exclusive obligation as to any claim under these warranties is the repair or replacement (at MDD’s option) of MDD Software or Equipment within a commercially reasonable time following MDD’s substantiation of that claim, and (ii) MDD will have no obligation under these warranties with respect to any modification of any Device by any person other than MDD (including Customer or a Dealership), or any repair or replacement of MDD PORTAL or any Device that is necessitated by misuse, abuse, damage or neglect by Customer or an Dealership.
9. Ownership. Except for Customer’s right to use MDD Software under this Agreement and the license agreement that is included in MDD Software (a copy of which is attached as Exhibit A), MDD will remain the owner of all rights and interest in MDD Software and all other MDD intellectual property.
10. Fees and Charges. Customer will pay MDD the fees and charges in the attached Pricing Schedule (the “Pricing Schedule”), as applicable to Customer’s use of the Services. The Pricing Schedule is a part of this Agreement.
11. Term and Termination. This Agreement will become effective on the Effective Date. Customer will begin use of the Services on the Start Date, and the initial term of this Agreement (the “Initial Term”) will continue for a period of 3 months following the Start Date. After the initial term service will continue on a month to month basis. Customer can cancel service within the Initial Term and be refunded their initial equipment costs less any lost, stolen or damaged equipment. Monthly service fees, Shipping and taxes are not refundable. Customer will not use MDD Software or any Device following the expiration or termination of this Agreement. Customer has the first 90 days to cancel the service and get a refund for equipment purchased. Tax, Shipping, installation fees, lost equipment or non-working equipment will not be refunded.
12. Use Restrictions. Customer shall not, and shall not permit any other person to, access or use the MDD Software or Equipment except in connection with MDD’s performance of Services. Without limiting the foregoing, Customer shall not: (a) copy, modify or create derivative works or improvements of the MDD Software, Equipment or Services; (b) rent, lease, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any MDD Software, Equipment or Services to any person; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the MDD Software; (d) input, upload, transmit or otherwise provide any data, information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; or (e) damage, destroy, disrupt, disable, interfere with or otherwise harm the MDD Software, Equipment or Services.
13. Events of Default and Remedies. As “Event of Default” will occur under this Agreement if (a) Customer fails to pay any amount due MDD and that failure continues for 10 days following written notice from MDD, or (b) either Customer or MDD fails to comply with any provision of this Agreement and that failure continues for 30 days following written notice from the other. If an Event of Default by Customer occurs, (i) upon demand by MDD, Customer will return all Equipment to MDD, (ii) MDD may suspend or discontinue the provision of any Services under this Agreement, (iii) MDD may terminate this Agreement, and (iv) all accrued and unpaid amounts payable to MDD under this Agreement, together with all amounts payable to MDD under this Agreement for the remainder of the term of this Agreement, will be immediately due and payable from Customer. If an Event of Default by MDD occurs, Customer may terminate this Agreement by written notice to MDD. The remedies provided in this Section are not exclusive and do not limit any other rights or remedies that may be available to MDD or Customer.
14. Requirements. Customer will satisfy all of its requirements for Services under and by way of this Agreement.
15. Limitation of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, ALL SERVICES, EQUIPMENT, AND MDD SOFTWARE ARE PROVIDED “AS IS” AND MDD MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES, MDD SOFTWARE, MDD PORTAL, EQUIPMENT, OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF THE EQUIPMENT OR THEIR MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE.
16. Limitation of Damages. UNDER NO CIRCUMSTANCES WILL MDD BE LIABLE TO CUSTOMER, A DEALERSHIP OR ANY OTHER PERSON, OR CUSTOMER LIABLE TO MDD, FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS) THAT RELATES IN ANY WAY TO THIS AGREEMENT EXCEPT IN THE EVENT OF MDD’S GROSS NEGLIGENCE, EVEN IF MDD OR CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
17. Force Majeure. Except for the payment of money, neither MDD nor Customer will be liable for non-performance under this Agreement if that non-performance is caused by labor troubles, fires, floods or other acts of God, accidents, war, riots, acts of terrorism, acts or order of any governmental body, or delay in the delivery of raw materials, parts, components or finished goods (each a “Force Majeure event”).
18. Assignment. MDD may assign or grant a security interest in all or part of MDD’s right, title and interest in this Agreement or any sums payable hereunder to a third party lender; provided, however, that no such assignment will relieve MDD of any of its obligations under this Agreement. Either MDD or Customer may, upon written notice to the other, assign its rights under this Agreement to a purchaser of substantially all of its assets. Except as provided above, (a) neither Customer nor MDD may assign any right or interest in this Agreement without the prior written consent of the other, which consent may not be unreasonable delayed or withheld, and (b) this Agreement is binding upon the successors and assigns of MDD and Customer. Customer agrees not to assign, sell, transfer, or encumber the Equipment or any interest therein.
19. Miscellaneous Provisions. This Agreement, together with the license agreement that is contained in MDD Software (which is a part of this Agreement), and any MDD Services supplement that is made a part of this Agreement, constitutes the entire agreement between MDD and Customer with regard to the subject matter addressed herein and supersedes all previous oral or written arrangements between MDD and Customer with regard to that subject matter. No waiver, modification, or amendment of any provision of this Agreement will be effective unless specifically made in writing and signed by both MDD and Customer. No waiver of any term in this Agreement will constitute a waiver of any other term or a waiver of that same term in any other instance. If a provision of this Agreement is found invalid, that invalidly will not affect other provisions that can be given effect without the invalid provision. Any provision of this Agreement that, by its terms, would apply following the expiration of termination of this Agreement, will survive the expiration or termination of this Agreement. During the term of this Agreement, and for a period of 12 months thereafter, neither MDD or Customer will solicit for employment (other than by way of general public solicitations), or hire, whether as an employee or and independent contractor, any person who is then employed by the other or who was employed by the other at any time during the then most recent 12-month period. This Agreement will be construed in accordance with the laws of the State of Delaware, without regard to the conflict of law principles of any jurisdiction. Notices under this Agreement will be in writing and will be delivered in person, by overnight courier, or by certified mail, return receipt requested, to the addresses set forth at the signature lines below, or to such other address as MDD or Customer may specify by written notice to the other.
20. Insurance. MDD currently has and will maintain while this agreement is in effect all insurance required by virtue of any law, rule or regulation applicable to MDD’s business.
Monthly fees for a Device begin on the day that Device is shipped to Customer or a Dealership and continue until service is terminated in accordance with the terms of this Agreement.
All of the amounts in this Section I (A) will increase on each annual anniversary of the Effective Date by a percentage factor that is equal to the percentage increase, if any, in the United States Bureau of Labor Statistics Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average for All Items, 1982-84 =100, over the then most recent calendar year.
| Description | Amount |
|---|---|
| Training and Orientation | |
| Annual Support and Maintenance | |
| Outbound and Inbound Shipping and Handling | MDD’s then-current standard shipping charges |
| Equipment | |
| Replacement tracking device | $16.95 each |
All of the amounts in this Pricing Schedule are payable to MDD within 10 days following receipt of invoice from MDD. If any amount owing from Customer to MDD under this Agreement is not received by MDD when due, Customer will pay MDD interest upon that amount at the rate of 1.5% per month (or if such rate is unlawful, the maximum rate allowed under applicable law), accruing from the date that such amount was due until the date that such amount is paid in full, plus all reasonable attorneys’ fees and costs incurred by MDD in collecting such amounts.
The following supplies (“Supplies”) are available for purchase from MDD (at Customer’s option) at the prices and on the terms set forth below. These prices are subject to adjustment by MDD upon notice to Customer.
| Supply | Price |
|---|---|
| Fasteners – Tracking Equipment | $29.95 – Box 100 Count |
| Battery – Vehicle Tracking Device | $195.95 – Box 100 Count |
| Battery – Key Tracking Device | $39.95 – Box 100 Count |
THIS End-User License Agreement (“EULA”) is entered into under a service agreement (the “SERVICE AGREEMENT”) between you and Mobile Data Dealer, LLC (“MDD”) or an authorized MDD reseller. This EULA is a legal agreement that allows you to use the MDD software (“SOFTWARE”) that is described in the SERVICE AGREEMENT (the “SERVICES”). BY INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THE EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, ACCESS OR USE THE SOFTWARE. The SOFTWARE is protected by trade secret laws, U.S. copyright laws, international copyright laws and treaties, and other intellectual property laws and treaties. This EULA is a part of the SERVICE AGREEMENT and is subject to all of the terms of the SERVICE AGREEMENT. This EULA is valid only during the term of the SERVICE AGREEMENT and will immediately expire upon any termination or expiration of the SERVICE AGREEMENT. Any breach or violation of this EULA by you will be and constitute a breach and violation of the SERVICE AGREEMENT by you. Your rights to use the SOFTWARE are strictly limited to those that are expressly set forth in the SERVICE AGREEMENT and the EULA. MDD hereby reserves all other rights relating to the SOFTWARE. The SOFTWARE is licensed, not sold.
1. GRANT OF LICENSE. MDD grants you a limited, non-exclusive, non-transferable license to use the SOFTWARE in accordance with, and subject to, the terms of this EULA. If you are using the SERVICES by way of MDD’S application service provider (ASP) offering, you may use the SOFTWARE only as hosted by MDD on MDD’S AWS servers.
2. RESTRICTIONS AND LIMITATIONS. You may only use the SOFTWARE in the manner expressly provided in this EULA. You may only use the SOFTWARE as a part of your use of the SERVICES. You may not: (i) use the SOFTWARE to process data for any other person unless you are expressly permitted to do so under the terms of the SERVICE AGREEMENT; (ii) modify, copy, duplicate, reproduce, reverse engineer, decompile, disassemble, separate, adapt or translate the SOFTWARE, reduce the SOFTWARE to human readable form, or create derivative works based on the SOFTWARE; (iii) sell, lease, lend, license, sub-license, or otherwise assign or distribute the SOFTWARE or any right to use the SOFTWARE; (iv) remove any proprietary notices from the SOFTWARE or any copy thereof; (v) use the SOFTWARE to, or in any way that would, violate any applicable law, regulation or ordinance; or (vi) input, upload, transmit or otherwise provide any data, information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code. This EULA does not grant you any rights to use any trademark or service mark of MDD.
3. ADDITIONAL SOFTWARE. MDD may provide you with support services related to the SOFTWARE, including technology, software, and services owned and controlled by third parties (“SUPPORT”). Any supplemental software provided to you as SUPPORT will be a part of the SOFTWARE and subject to the terms of this EULA. Any technical information that you provide to MDD in connection with any SUPPORT may be used by MDD for its business purposes, including for product support and development. Any updates, additions, and supplements that may be provided to you with regard to the SOFTWARE (“SUPPLEMENTS”) will, regardless of the manner or form in which you receive them, be a part of the SOFTWARE and subject to the terms of this EULA; provided, however that if SUPPLEMENTS are provided with a separate license agreement, that separate license agreement will govern those SUPPLEMENTS.
4. U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE is licensed to you under this EULA with RESTRICTED RIGHTS.
5. EXPORT RESTRICTIONS. You may not export or re-export the SOFTWARE to any country, person, entity or end user in violation of U.S. export restrictions.
6. TERMINATION. Notwithstanding anything contained in the SERVICE AGREEMENT to the contrary, and without limiting any other rights or remedies available to MDD, MDD may immediately terminate this EULA if you violate any of the terms of this EULA. Upon termination of this EULA for any reason, (i) all licenses and rights to use the SOFTWARE shall terminate and you must remove any copies of the SOFTWARE in your possession; and (ii) Section 2, 5, and 7-9 shall survive termination.
7. WARRANTY AND LIMITATIONS. MDD warrants to you that (a) the SOFTWARE does not infringe upon any patent or copyright belonging to any person, and (b) during the term of the SERVICE AGREEMENT, the SOFTWARE will perform substantially as is necessary for the performance of the SERVICES under normal and intended usage conditions; provided, however that (i) MDD’s sole and exclusive obligation as to any claim under these warranties is the repair or replacement (at MDD’S option) of the SOFTWARE within a commercially reasonable time following MDD’S substantiation of such claim, and (ii) MDD will have no obligation under these warranties with respect to (1) any modification to the SOFTWARE by any person other than MDD (including you), or (2) any repair or replacement of SOFTWARE that is necessitated by misuse, abuse, damage, or neglect by you or a person for whom the SERVICES are performed. EXCEPT FOR THE WARRANTIES MADE BY MDD IN THIS SECTION 7, MDD DOES NOT MAKE ANY WARRANTY TO YOU OR ANY OTHER PERSON, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY RELATING TO CONDITION, ACCURACY, RELIABILITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MDD HEREBY DISCLAIMS ALL SUCH WARRANTIES.
8. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MDD BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS OR OPPORTUNITY) RELATING TO THIS EULA OR YOUR USE OF THE SOFTWARE EXCEPT IN THE EVENT OF MDD’S GROSS NEGLIGENCE, EVEN IF MDD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. GOVERNING LAW ENTIRE AGREEMENT/SEVERABILITY. This EULA is governed by the laws of the United States and the State of Delaware, without regard to the laws of any jurisdiction that concern choice or conflict of laws. This EULA and the SERVICE AGREEMENT constitute the entire agreement between you and MDD relating to the SOFTWARE and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the SOFTWARE. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions of this EULA will continue in full force and effect.
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