Terms and Conditions
DealerMark Solutions LLC. Software License Agreement
This Software End User License Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and DealerMark Solutions LLC (“DealerMark”). This Agreement governs your use of the DealerMark Software. The DealerMark Software is licensed, not sold, to you. This License is granted because there is an existing valid and active agreement for the provision and use of the DealerMark Software between your employer and DealerMark (“DealerMark Agreement”).
BY CLICKING THE “AGREE/ACCEPT” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NO ACCESS THE DealerMark SOFTWARE.
- LICENSE GRANT. Subject to the terms of this Agreement, DealerMark grants you a single use, limited, non-exclusive, and nontransferable license to:
- Create a single login identity for the use on no more than one computer or other Internet enabled device at any one time strictly in accordance with the DealerMark Software’s documentation;
- Download, install, and use the Mobile Application for your use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the DealerMark Software’s documentation; and
- Access and use the Content and Services (as defined in Section ____) made available in or otherwise accessible through the DealerMark Software, strictly in accordance with this Agreement.
- LICENSE RESTRICTIONS. Licensee shall not:
- Copy the DealerMark Software, except as expressly permitted by this license;
- Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the DealerMark Software;
- Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the DealerMark Software, including any copy thereof; or
- Rent, lease, lend, sublicense, assign, distribute, publish, transfer, or otherwise make available the DealerMark Software, or any features or functionality of the Application, to any third party for any reason, including by making the DealerMark Software available on a network where it is capable of being accessed by more than one device at any time.
- RESERVATION OF RIGHTS. You acknowledge and agree that the DealerMark Software is provided under license, and not sold to you. You do not acquire any ownership interest in the DealerMark Software under this Agreement, or any other rights thereto other than to use the DealerMark Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. DealerMark reserves and shall retain its entire right, title and interest in and to the DealerMark Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- TERMINATION. This License is effective until terminated. Your rights under this License will terminate automatically without notice from DealerMark if: (a) you fail to comply with any term(s) of this License, or (b) the DealerMark Agreement creating the right for this License is terminated. Termination of this Agreement will not limit any of DealerMark’s rights or remedies at law or in equity.
- UPDATES, UPGRADES AND SUPPLEMENTS. From time to time, DealerMark may, in its sole discretion develop and provide updates, which may include upgrades, bug fixes, patches other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also (i) contain materially new features not included in the DealerMark Agreement (ii) may be priced and offered separately as optional additions to the DealerMark Software and (iii) are not a part of this License unless there is a DealerMark Agreement or Addendum to an existing, valid DealerMark Agreement which covers the new or additional features.
- THIRD-PARTY MATERIALS. The DealerMark Software may display, include, or make available thirdparty content (including data, information, applications, and other products, services, and/or materials) (“Third-Party Materials”). You acknowledge and agree that DealerMark is not responsible for Third- Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. DealerMark 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.
- DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE DealerMark SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DealerMark SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DealerMark HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE DEALERMARK SOFTWARE, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES THAT MAY ARISE OUR OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. DealerMark DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE DealerMark SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE DealerMark SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE DealerMark SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE DealerMark SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DEALERMARK OR A DEALERMARK AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE DEALERMARK SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
- LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DEALERMARK BE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE OR AN INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE DealerMark SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF DealerMark HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF LIABILITY FOR PERSONAL INJUR, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no even shall DealerMark’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The forgoing limitations will apply even of the above stated remedy fails of its essential purpose.
- INDEMNIFICATION. You agree to indemnify, defend, and hold harmless DealerMark and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, action, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney’s fees, arising from or relating to your use or misuse of the DealerMark Software or your breach of this Agreement, including but not limited to the content you submit or make available through the DealerMark Software.
- EXPORT LAW ASSURANCES. The DealerMark Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly use or otherwise export or re-export the DealerMark Software except as authorized by United States law and the laws of the jurisdiction in which the DealerMark Software was obtained. In particular, but without limitation, the DealerMark Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the DealerMark Software, you represent and warrant that you are not located in, under control of, or a national resident of any such country or on any such list.
- GOVERNMENT END USERS. The DealerMark Software and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being ”licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States.
- GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania. Any legal suit, action, or proceeding arising out of or related to this Agreement v. 100217 or the DealerMark Software shall be instituted exclusively in the federal courts of the United State or the courts of the State of Pennsylvania in each case located in Philadelphia County, Pennsylvania. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- 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 if full force and effect.
- COMPLETE AGREEMENT; GOVERNING LANGUAGE. This License constitutes the entire agreement between you and DealerMark with respect to the use of the DealerMark Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by an officer of DealerMark.