(a) The term “Comments” means all written vehicle comments utilized or provided by daN are a work product produced by daN, and derivate works of any of the foregoing, including, without limitation, the website or websites made available to you by daN, any programming performed as part of providing you with Comments and any other special programs, functionalities, interfaces and other work product, ideas, concepts or techniques which daN may develop, use or rely upon in providing the Comments to you.
(b) All daN Property shall be and will remain the property of daN
(c) As between you and daN, daN shall be the sole and exclusive owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights in and to the Dealer Assist Now Property and the Comments.
(d) Upon placing the Comment into your Marketing System either by daN or by the dealership, the dealership may use the Comment any place that the dealership markets vehicles, local or national sites, auctions, electronic, print, video or television. Upon Comment placement daN transfers full use of the Comment to the Dealership.2. Limited License.
Upon your execution of the Agreement and the payment of all amounts due daN, you are granted a personal, nontransferable and nonexclusive license to use the Comments solely for your direct marketing, market research and customer prospecting purposes, in strict accordance with the terms of the Agreement. Upon expiration or termination of the Agreement, you shall discontinue use of the Comments.
3. Limitations on Use.
(a) Unless specifically authorized in advance and in writing by Dealer Assist Now, you will not share, sell, transfer or otherwise make the Comments available to any other Dealership. The dealership May Not resell the comment or give the daN comment to another dealership without written consent from daN.
(b) You will not use the Comments for consumer credit purposes, underwriting consumer insurance, employment purposes, tenant screening purposes, for any other purpose covered by the federal Fair Credit Reporting Act or for any other purpose not expressly authorized by the Agreement.
4. Your Responsibilities; Use of Email Data and Review.
(a) Your use of the Comments will comply with all applicable federal, state, local and foreign laws, statues, rules and regulations (“Laws”), including Laws regarding telemarketing, email and facsimile marketing, customer solicitation and all applicable guidelines of the Direct Marketing Association (“DMA”). If you are not a member of the DMA, you will use your best efforts to comply with the DMA’s guidelines.
(b) Your use of any email Comments will comply with all applicable Laws, including the CAN-SPAM Act, COPPA, and any State Registry laws.
(c) Dealer Assist Now reserves the right to review your use of the Comment to ensure compliance with this Agreement, but any failure of Dealer Assist Now to review such use will not constitute acceptance of such use or waive any of Dealer Assist Now’s rights hereunder or limit any of your obligations with respect to the Comment.
5. Disclaimer of Warranties; Limited Warranty.
THE COMMENT IS PROVIDED ON A STRICTLY “AS IS” BASIS. DEALER ASSIST NOW DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE COMMENT AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, DEALER ASSIST NOW DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE 14 DAYS FROM YOUR RECEIPT OF THE COMMENTS TO INSPECT IT AND NOTIFY DEALER ASSIST NOW OF ANY PROBLEMS OR MISTAKES IN THE COMMENT AND IF YOU SO NOTIFY DEALER ASSIST NOW WITHIN THAT 14-DAY PERIOD, THE PROBLEM OR MISTAKE WILL BE CORRECTED AT NO ADDITIONAL CHARGE TO YOU.
6. Limitation of Liability.
Except as provided in the last sentence of Section 5, daN will not be liable for any claim, demand, loss, liability, damage, injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or other damage caused in whole or in part or directly or indirectly by any use of the Comment.
7. Your Indemnification of daN.
You shall indemnify, defend and hold harmless daN, its stockholders, directors, officers, employees, independent contractors and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Comments or any violation of the Agreement or any violation of Laws.
8. Interruption of Service.
You acknowledge that, given the technical nature of resources daN requires to provide the Comments to you, temporary interruptions may occur in the provision of Comments and that any such interruptions shall not result in daN having any liability to you or others and shall not suspend or eliminate your payment obligations to daN or provide you with any refund rights for amounts previously paid to daN.
9. No Assignment by You.
You may not assign your rights or obligations under the Agreement to any other person or entity without the prior written consent of daN, whether by operation of law or otherwise, and any attempt to do so shall be void.
10. Additional Remedy of Termination.
In addition to all other legal rights and remedies available to daN for any apparent, threatened or actual breach or violation of the Agreement by you, daN has the right to terminate the Agreement if you are not complying in full with the Agreement.
11. Governing Law; Jurisdiction.
The Agreement shall be governed by and construed under the laws of the State of Nebraska, without regard for the principles of conflicts of law of that State or any other state. Any litigation or other dispute relating to or arising under the Agreement shall only be brought in the state or federal courts located in Cass County, Nebraska and you agree to submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any such proceeding in those courts.
12. Payment for Non-Invoiced Products.
(a) Payment: You agree to pay daN a fee in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. Fees charged are nonrefundable. In the case of subscription products, the subscription term shall be effective for the agreed upon period, after which the subscription term shall automatically renew for the specified renewal period (if any) at the then current subscription price.
(b) Recurring Billing: Your acceptance of these terms constitutes your authorization to daN to automatically charge the credit/debit card provided by you, and in the case of subscription products, to continue charging the credit/debit card at the agreed-upon intervals during the term of the subscription. You agree to provide daN with complete and accurate billing and contact information and to update that information with thirty (30) days of any change to the billing information. Failure of the recurring payment process does not absolve your payment obligations.
(c) Interest Charges: There will be interest charges on any amounts which you fail to pay when due at the rate of 1.5% a month, or such lower rate as may be equal to the maximum rate allowed by applicable law, on the unpaid amount.
13. Entire Agreement; Amendment or Waiver.
The Agreement contains the entire understanding between you and daN and supersedes any prior understandings or agreements, oral or written, relating to the subject matter of the Agreement. The Agreement may only be amended by a document signed by you and daN. No waiver of any breach of the Agreement shall be deemed a waiver of a future breach, whether of a similar or different nature, and no waiver shall be effective unless in writing signed by the waiving party.
14. Execution; Counterparts.
The Agreement may be executed in its original, by facsimile or in electronically transmitted portable document format and it may be executed in any number of counterparts, each of which shall be deemed an original of the same document.