This Master Subscription Agreement is entered into between you (“Dealer”) and Zoomist, LLC (“Zoomist"). BY CLICKING THE “ACCEPT” BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
This Master Subscription Agreement and any attached addenda, including the Software Subscription Addendum attached hereto (collectively, the “Agreement”) sets forth the basic terms and conditions under which the Zoomist Software (“Software”) will be delivered. This Agreement shall govern Dealer’s initial purchase on the Effective Date, which is the date Dealer provides payment for a Subscription, as well as any future purchases made by Dealer which reference this Agreement. Zoomist provides the Software on a monthly subscription basis (each, a “Subscription”). Each Subscription is prepaid on the first day of the Subscription.
1. Term of Agreement.
1.1 Term. This Agreement is effective as of the Effective Date and expires on the day that the last Subscription Term hereunder expires (the “Term”). Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter).
1.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to Zoomist under this Agreement before such termination will be immediately due and payable; (b) each party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement; and (c) Dealer must certify in writing to Zoomist that it has returned or destroyed all Zoomist’ Confidential Information. All licenses granted hereunder, if any, expire upon the earlier of the termination of this Agreement or the expiration of the Subscription Term.
1.3 Survival. Sections 1 (Term of Agreement), 2.2 (Warranty Disclaimer), 4 (Limitation of Remedies, Damages, and Indemnity), 5 (Confidential Information), 6 (General), and 7 (Definitions) shall survive any termination or expiration of this Agreement.
2. Limited Warranty and Disclaimer.
2.1 Warranty Disclaimer. THIS SECTION 2 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 2, THE software is PROVIDED “AS IS.” zoomist DOES NOT WARRANT THAT THE software FURNISHED OR PROVIDED TO dealer UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR THAT it WILL BE FREE FROM DEFECTS OR THAT THE software is DESIGNED TO MEET dealer’s BUSINESS REQUIREMENTS. zoomist MAKES no OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. dealer MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. Dealer acknowledges that the software is not intended for use in connection with any high risk or strict liability activity (including, without limitation, air or space travel, power plant operation, or life support or emergency medical operations) and that Zoomist makes no warranty and shall have no liability in connection with any use of the software in such situations.
4. Limitation of Remedies, Damages, and Indemnity.
4.1 ZOOMIST SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
4.2 ZOOMIST’S TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY ZOOMIST IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY DEALER TO ZOOMIST DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO THE CLAUSE OF ACTION ARISES.
4.3 The provisions of this Section 4 allocate risks under this Agreement between Dealer and Zoomist. Zoomist’ fees for the Subscriptions reflect this allocation of risks and limitation of liability.
4.4 Dealer will defend, indemnify and hold harmless Zoomist, and its respective employees, officers, directors (or their equivalent), agents, assigns and successors-in-interest (each an “Indemnified Party”) against any and all claims, suits, actions, proceedings or demands (“Claims”), and judgments, losses, payments, costs (including costs related to the provision of notices to customers or Consumers, or ongoing credit monitoring services), expenses (including related to investigation or reasonable attorneys’ fees), damages, settlements, liabilities, fines or penalties (“Costs”) of the Indemnified Party, arising from or relating to: (i) the breach by Dealer or its personnel of any of its obligations, covenants, representations or warranties under this Agreement; (ii) non-compliance by Dealer or its personnel with any law related to its performance under this Agreement; (iii) the infringement, misappropriation or other violation of intellectual property rights; or (iv) the negligent, fraudulent or criminal acts or omissions, or willful misconduct, of Dealer or its personnel. The Indemnified Party will provide Dealer: (i) reasonably prompt written notice of any Claim; (ii) control over the defense or settlement of any such Claim, provided that Dealer may not settle such Claim or admit liability on the part of the Indemnified Party without the Indemnified Party’s prior written consent, and provided that the Indemnified Party has the right to participate in the defense of such Claim at its expense and through counsel of its choosing; and (iii) non-financial assistance at Dealer’s request to the extent reasonably necessary for the defense of any such Claim. However, if the Dealer fails to timely or adequately defend the Claim, in Zoomist’s sole reasonable determination, the Indemnified Party may, at its option, conduct the defense of any Claim arising under this Section 4, and Dealer agrees to cooperate in such defense, provided the Indemnified Party reasonably consults with Dealer on any related settlement. A failure by an Indemnified Party to provide reasonably prompt written notice of the existence of any Claim will only affect Dealer’s obligation to pay Costs to the extent such failure materially prejudices Dealer’s ability to reduce Costs or defend a Claim.
4.5 NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE SUBSCRIPTIONS PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
5. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it (“Receiving Party”) obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of Confidential Information of the Disclosing Party; or (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party. Any software, documentation or technical information provided by Zoomist (or its agents) that has not been released to the Zoomist community, performance information relating to the Products or Cloud Services, and the terms of this Agreement shall be deemed Confidential Information of Zoomist without any marking or further designation. The Receiving Party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party is liable for all acts and omissions of its employees and consultants to the extent that such act or omission would be a breach of this Agreement if done by Receiving Party. The Receiving Party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. The Receiving Party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the Receiving Party provides prompt written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The Receiving Party shall protect Confidential Information in the manner provided herein for five (5) years after receipt thereof, unless such obligation ceases earlier pursuant to this Section; provided that, to the extent the Confidential Information constitutes a trade secret(s) under law, the Receiving Party agrees to protect such information for so long as it qualifies a trade secret under applicable law. Notwithstanding anything to the contrary herein, the terms and conditions of this Agreement shall constitute the Confidential Information of each party.
6.1 Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
6.2 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the New York state and United States federal courts located in New York, New York, and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.
6.3 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
6.4 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth in the Order Form and shall be deemed given upon delivery if sent by: (i) personal delivery; (ii) certified or registered U.S. mail (return receipt requested); or (iii) overnight commercial delivery service.
6.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Dealer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
6.6 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement including. Dealer acknowledges that Zoomist products are subscription-based products and that, in order to provide improved customer experience, Zoomist may make changes to the Zoomist Software. Zoomist reserves the right to update the terms and conditions of this Agreement by posting revisions on the Zoomist website, and those revisions will be binding upon the parties hereto.
6.7 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
6.8 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.
6.9 Government Regulation. Dealer may not export or re-export the Software. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement.
6.10 Dealer Acknowledgement. Dealer agrees that Zoomist may from time to time identify Dealer (with Dealer’s name, logo, or trademark) as a Zoomist customer in or on Zoomist’s website, sales and marketing materials, or press releases.
6.11 No Hire. Dealer and Dealer’s Affiliates may not hire, or directly or indirectly solicit or employ, any employee or contractor of Zoomist who is or was involved in the development, use or provision of Support to Dealer, without the prior written consent of Zoomist, during the term of this Agreement and for a period of two (2) years thereafter; provided that nothing contained herein will prevent Dealer or its Affiliates from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.
6.12 Assignment. Dealer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Zoomist, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.
6.13 Headings. The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.
7.1 Affiliate means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
7.2 Agreement means this Master Subscription Agreement and Order Form(s) and any addenda attached or incorporated into this Agreement by reference.
7.6 Confidential Information means all code, inventions, know-how, business, technical and financial information provided by either party that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure.
7.7 Disclosing Party means the party disclosing Confidential Information.
7.9 Effective Date means the date indicated at the top of this Agreement.
7.18 Receiving Party means the party receiving Confidential Information.
7.19 Subscription means a license for the Software.
7.20 Subscription Term means the term designated in the Software Subscription Addendum attached hereto.
7.22 Term means the period until this Agreement expires on the day that the last Subscription Term expires.
7.23 Third Party Products means certain third party software and certain third party hardware that is not provided or licensed by Zoomist.
Accepted and agreed to as of the Effective Date by the authorized representative of each party:
1.1 Grant of License. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, Zoomist grants to Dealer a non-transferable, non-sublicensable, non-exclusive license to install the Software, and for Dealer’s employees to use the Software, but only in accordance with (i) the Documentation, (ii) this Agreement, and (iii) the Subscription Term
1.2 License Restrictions. Dealer shall not, on its own or through any parent, subsidiary, Affiliate, agent or other third party: (i) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any of the Software or the Documentation to a third party; (ii) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Software, in whole or in part, nor will Dealer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage others to do so; (iii) allow access or permit use of the Software by any users other than authorized users; (iv) create, develop, license, acquire, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products, any additional licensing terms provided by Zoomist via Documentation, notification, and/or policy change posted at http://www.zoomist.com, or the terms of this Agreement; or (v) modify or create derivative works based upon the Software.
1.3 Audit Rights. Dealer will maintain accurate records as to its use of the Software as authorized by this Agreement, for at least two (2) years after the expiration or termination of this Agreement. Zoomist, or persons designated by Zoomist, will, at any time during the period when Dealer is obliged to maintain such records, be entitled to audit such records and to ascertain completeness and accuracy, in order to verify that the Software is used by Dealer in accordance with the terms of this Agreement.
1.4 Third-Party Code. The Products may contain or be provided with certain third-party code. Such third-party code is licensed under the terms of the applicable license conditions and/or copyright notices that can be found in the license file, the Documentation or other materials accompanying the Software.
1.5 Customer Data. Dealer agrees to obtain permission from all customers whose information is entered into the Software to Zoomist’s use and dissemination of such information in accordance with the Documentation and the functionality of the Software.
1.6 Data. Dealer agrees and recognizes that Zoomist may share data generated by Dealer or input by Dealer into the Software with other Dealers, including without limitation information regarding test drives, geographic location, and the make and model of the vehicles driven, and that Dealer may have access to such information from other Dealers, as part of the functionality of the Software.
2. Ownership. Notwithstanding anything to the contrary in this Agreement, except for the limited license rights expressly provided in Section 1, Zoomist has and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof created by Zoomist. Dealer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Dealer under this Agreement or otherwise.
3. Subscription Term, Term of this Addendum, Subscription Fees and Payment Terms.
3.1 Subscription Term and Renewals. The term of each Subscription shall be one (1) month commencing on the Effective Date. Each Subscription Term shall automatically renew for subsequent periods of the same length as the initial Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term. The rates for any Subscription Term renewals shall be Zoomist’ then-current Subscription rates.
3.2 Term of this Addendum. This Addendum commences on the date stated above and continues until all Subscriptions granted in accordance with this Addendum have expired or been terminated unless the Agreement is earlier terminated. This Addendum and all Subscriptions to the Software terminate upon the termination of the Agreement. Upon expiration or termination of this Addendum or the Agreement, Dealer shall cease any and all use of the Software and destroy all copies thereof and so certify to Zoomist in writing.
3.3 Subscription Fees. Dealer shall pay all fees for each Subscription as specified by Zoomist. Dealer may purchase additional Subscriptions by entering into additional Subscriptions with Zoomist. The Subscription fee for each additional Subscription will be Zoomist’ then-current Subscription fees.
3.4 Termination for Cause. A party may terminate this Addendum: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.5 Payment Terms. All fees shall be paid by Dealer prior to the beginning of the Subscription Term. All payments are non-refundable (except as expressly set forth in this Agreement). Dealer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Zoomist). If Dealer is required to pay any withholding tax, charge or levy in respect of any payments due to Zoomist hereunder, Dealer agrees to gross up payments actually made such that Zoomist shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy. Payments will be made without right of set-off or chargeback. Any late payments shall be subject to a service charge equal to 1% per month of the amount due or the maximum amount allowed by law, whichever is less. If payment of any fee is overdue, Zoomist may also suspend provision of the Software until such delinquency is corrected.
3.6. Surviving Provisions. Sections 2 (Ownership) and 3.6 (Surviving Provisions) shall survive any termination or expiration of this Addendum.
Accepted and agreed to as of the Effective Date by the authorized representative of each party: