This LICENSE AGREEMENT (“Agreement”) is made and entered into by and between Maximus Auto Group, Inc., a Florida corporation (“MAG”), and (“Dealer“), as of the date listed on the Third Party Work Agreement (the “Effective Date”). By executing this Agreement, the parties agree to all of the provisions hereof.
1. License. MAG hereby grants to Dealer the limited right and license to use the MAG web-based, software application (the “Application”) in accordance with its documentation and MAG’s instructions, if any, beginning on the Effective Date until the first anniversary thereof and renewing yearly thereafter (each, a “Term Year,” collectively, the “Term”) until this Agreement is terminated by either party.
TERMS AND CONDITIONS
2. Ownership and Use Limitations. The Application is and shall remain the property of MAG and/or its suppliers. Dealer shall obtain no interest therein other than the limited license granted hereunder. Dealer shall not sell, rent, transfer, reproduce, publicly display, modify, adapt, translate, or create derivative works of, the Application. Dealer shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form of, the Application. Dealer shall not reproduce the functionality of the Application or engage any third party to do so. Dealer shall maintain the confidentiality of the Application and its features and shall promptly notify MAG of any disclosure thereof to any unauthorized third party.
3. Permissions to MAG. Dealer hereby grants to MAG and its data provider to provide F&I deal and customer data directly to MAG through the Certified Interface program.
4. Confidentiality. MAG represents and warrants to Dealer that MAG presently maintains, and will continue to maintain and periodically test the efficacy of, appropriate information security programs and measures designed to ensure the security and confidentiality of “Customer Information” which obligations may include the Gramm-Leach-Bliley Act and its implementing regulations (“GLBA”), and other United States laws. Such information security programs and measures shall include appropriate procedures designed to (1) protect the security and confidentiality of such information, (2) protect against unauthorized threats or hazards to the security or integrity of such information, and (3) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer of Dealer. Dealer, its representatives and applicable governmental regulators may, from time to time, also audit the security programs and measures implemented by MAG pursuant to this section.
5. Each Party shall promptly notify the other in the event of any security breach relating to Customer Information. Neither Party shall use Customer Information for any purpose other than in furtherance hereof. Dealer shall be solely responsible for accurately informing its customers of any use to which Dealer puts Customer Information with Customer’s authorization. NOTICE: THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATON AND/OR CONSUMER DATA.
6. Limitation of Liability; Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO DEALER AT NO COST; THEREFORE, DEALER SHALL HAVE NO REMEDY FOR ANY DAMAGE OR LOSS ARISING IN CONNECTION WITH THE APPLICATION OR MAG’s PERFORMANCE HEREUNDER, WHICH DEALER HEREBY AGREES IS A FAIR AND EQUITABLE REMEDY. UNDER NO CIRCUMSTANCES SHALL MAG BE LIABLE TO DEALER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO DEALER’S USE OR RELIANCE UPON THE APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. THIS LIMITATION SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. THE APPLICATION IS MADE AVAILABLE ON AN “AS IS” BASIS ONLY AND MAG MAKES NO WARRANTIES, CONDITIONS, INDEMNITIES, OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTERS, INCLUDING WITHOUT LIMITATATION NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. DEALER REMAINS SOLELY RESPONSIBLE FOR OPERATING DEALER’S BUSINESS RESPONSIBLY.
7. Indemnity. Dealer shall indemnify, defend, and hold harmless MAG, its officers, directors and employees from and against all actual and threatened third party claims, actions, damages, and losses of every kind arising in connection with any act or omission of Dealer’s and/or Dealer’s personnel.
8. Assignability. MAG may assign any or all of its responsibilities, rights, duties or obligations under this Agreement to any of its affiliates or subsidiaries without the prior written approval of Dealer. Dealer shall not assign this Agreement without the prior written approval of MAG.
9. Term. This Agreement shall be effective as of the Effective Date, and shall continue until terminated by either party upon notice to the other. This Agreement shall also be terminated in the event of either party’s breach hereof upon ten (10) days written notice thereof to the breaching party by the non-breaching party unless within such ten (10) day period the breaching party cures such breach.