RAPID RECON® LICENSE AGREEMENT (“LICENSE”)
ATTENTION – THIS LICENSE, AND THE TERMS AND CONDITIONS CONTAINED HEREIN, APPLY TO YOUR ACCESS AND USE OF THE PROPRIETARY SOFTWARE AND SERVICES KNOWN AS RAPIDRECON®. THIS LICENSE IS FULLY INTEGRATED INTO YOUR ORDER FOR RAPIDRECON.
IMPORTANT
This License is a legal agreement between you (the dealership or dealer group licensing the Rapid Recon software and services – “Licensee”, “you” or “your”) and Rapid Recon Inc. (“Rapid Recon” or “Licensor”). You are agreeing to the terms of this License for all users, whether employed by your dealership or group, acting as a subcontractor or otherwise given access to the Software by you. Licensee shall be liable for any Permitted User’s failure to comply with the terms and conditions of this License.
This License may be updated by Rapid Recon from time to time and any updates will be provided to you either in written form or electronically posted on the Software site. Your continued access and use of the Software constitutes your agreement to any updated License terms. If you do not agree to the updated license, your sole recourse is to cancel your license to the Software on a going forward basis.
DEFINITIONS
As used in this License, the following terms shall have the following meanings when used in initial capital letters:
“Licensee Data” means data and information that is uploaded by Licensee and stored on Rapid Recon’s servers for use in connection with Licensee’s use of the Software.
“Documentation” means any instruction manual or other accompanying written materials for the Software that are made available through the Rapid Recon website.
“Permitted User” means an individual designated by Licensee and provided with a unique login identification and password to access the Software, which is confidential and may not be shared with anyone. Permitted Users are limited to those Licensee individuals who have a need to access the Software and are working within (or in direct support of) the licensed locations identified as part of the Licensee Order.
“Software” means the Rapid Recon software.
“Third-Party Licensors” means those third parties that provide data to Rapid Recon, which is integrated into the Software.
LICENSE
Subject to full payment of the License Fee and the terms and conditions of this License, Rapid Recon hereby grants to Licensee during the Term a limited, personal, non-exclusive, non- sublicensable, non- transferable license to access and use the Software and any Documentation for its own internal business purposes. Only Permitted Users will have access to or use of the Software. As used herein, references to Licensee include any Permitted Users with respect to the Software. All of Licensee’s Permitted Users are bound by the terms and conditions of this License.
HOSTING; CONNECTION
The Software will reside on a secure server owned by Rapid Recon and/or a reputable third-party hosting service provider (the “Hosting Server”) and Licensee will be provided with access to the Software via the Internet (the “Hosted Service”). Licensee shall be solely responsible for connecting to the Hosting Server (and all third party fees associate therewith), and Licensee shall be solely responsible for resolving all issues relating to Licensee’s computer systems and/or firewall in conjunction therewith.
Licensee understands and agrees that connections to the Internet are subject to unexpected downtime. Because of the foregoing, and also because the Software is accessed by Licensee via the Internet, Licensee agrees and understands that Rapid Recon shall have no responsibility for downtime due to hardware problems or technical problems relating to the Internet, or downtime experienced due to Licensee’s Internet service provider.
Rapid Recon may conduct scheduled maintenance on the Software, resulting in unavailability of the Hosting Service and the Software for periods of time. Rapid Recon will endeavor to (i) conduct such maintenance during off-peak use hours and (ii) advise users of such maintenance in advance.
LICENSE FEE; PAYMENT; TAXES
The License fee will be billed in advance beginning on the License commencement date. All fees are due and payable thirty (30) days from the date of billing. Licensee shall be liable for all costs relating to or arising out of the collection of any delinquent payment, including, but not limited to, any and all collection fees, reasonable attorneys’ fees, court costs and expenses. License fees shall be increased annually in accordance with the prior calendar year’s increase in the Consumer Price Index for all Urban Consumers, which increase will be implemented after it is officially reported by the Bureau of Labor Statistics for the prior calendar year. Licensor reserves the right to increase the applicable Software license fee on thirty
(30) days’ notice to licensees and Licensee’s sole recourse for any such fee increases shall be to cancel this License at the end of the current licensed month. Should Licensee choose to make any payment to Rapid Recon by wire transfer or other electronic means, Licensee shall be solely responsible for ensuring sufficient funds are included with such payment to cover any charge(s) imposed by Licensee’s bank or other financial institution or by any other bank or other financial institution in connection with such transfer. Failure to make payment may result in suspension of services, including access to and use of the Software and the Hosting Service, and Rapid Recon shall have no liability with respect to such suspension. Licensee shall be solely responsible for identification and payment of any duties, tariffs, assessments, and taxes (other than U.S. federal income tax and/or state income tax payable by Rapid Recon on its revenue) which may accrue or be assessed relating to this License or the provision of services hereunder. Under no circumstance shall fees billed by Rapid Recon and payable to Rapid Recon by Licensee be reduced owing to any such duties, tariffs, assessments, or taxes unless otherwise required by applicable law.
WINDOW STICKER USAGE AND FEES
Included Volume- The subscription includes two hundred fifty (250) Sticker Pulls per calendar month (“Included Volume”).
Overage- For any Sticker Pulls exceeding the Included Volume in each calendar month, Customer will be charged $2.00 per excess Sticker Pull (“Overage Fees”).
Definitions- A “Sticker Pull” means each unique VIN requested resulting in the discrete retrieval or generation of a Rapid Recon Sticker (or equivalent sticker output) initiated by or on behalf of Customer.
Measurement- Usage is measured by the Vendor’s system logs. Partial pulls count as one Sticker Pull.
Billing Overage – Fees are billed monthly in arrears and due pursuant to the Agreement’s payment terms.
TERM AND TERMINATION
Unless agreed otherwise by the parties in writing, this License shall be a month-to-month license, which shall automatically renew monthly unless either party notifies the other party of termination, which shall be effective on thirty (30) days’ notice; provided, however, that Licensee may not terminate in the first ninety
(90) days of this License, except in the event of an uncured breach by Licensor. In the event of any breach of any material term or provision by either party of this License, the other party may terminate this License by giving thirty (30) days’ prior written notice thereof; provided, however, that such termination shall not take effect if the party in breach cures or corrects the breach within such notice period. Either party may terminate this License upon written notice to the other in the event (i) any injunction, order, judgment, decree or regulatory restriction imposed upon the other party by any government, state or other
entity exercising executive, legislative, judicial, regulatory or administrative functions, materially and adversely affects the other party’s ability to perform its obligations under this License, or (ii) the other party is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.
Upon termination of this License, Licensee shall cease use all use of the Software and immediately destroy any and all Software (including data contained in the Software) and Documentation, and all portions and copies thereof, including, without limitation, all data in Licensee’s computer environment (i.e., data on its network, desktops, memory devices). Licensee also agrees to certify in writing as to certify such destruction at the request of Licensor.
USER RESTRICTIONS; OWNERSHIP OF MATERIALS
All intellectual property and proprietary rights (including, but not limited to, copyrights, database rights, trademark rights and trade secret rights) in the Software, including but not limited to all data, software, code, copy, graphical interface, logic, selection and arrangement of materials, trademarks, logos, videos and documentation included therein, are and shall remain the sole and exclusive property of Rapid Recon (and, as applicable, Third-Party Licensors). Rapid Recon retains all title and ownership of the Software.
This License is not a sale of the original Software or any copy.
Except as otherwise expressly permitted under this License, Licensee shall not (i) publish, reproduce and/or otherwise distribute the Software (including the data contained in the Software) or any components thereof in any manner (including but not limited to as part of any Internet site), (ii) rent, lease, transfer or otherwise provide access to the Software (including the data contained in the Software) or any portion thereof to any third party, (iii) copy, modify, translate, reverse engineer, decompile, disassemble the Software, or create derivative works based on the Software (including the data contained in the Software) or Documentation, (iv) create, or attempt to create, archival or derivative works based on the Software (including the data contained in the Software) or any portion thereof, (v) attempt to interfere with the access to the Software or Hosting Services by others, (vi) attempt to upload viruses or malicious code, or do anything that could disable, overburden, or impair the proper working or appearance of the Software or Hosting Services, (vii) attempt to access or collect data from the Software using automated means or access data that Licensee does not have permission to access (for example, the data of other licensees),
(viii) use or attempt to use the Software for any unlawful purpose or in a manner that is violative of any third party’s rights, and/or (ix) request Software credentials for, or provide Software credentials to, individuals not employed by Licensee or individuals that do not have a legitimate business need to access the Software. Unless otherwise agreed to in writing by Rapid Recon, the Software shall be used exclusively for Licensee’s own internal business. For the avoidance of doubt, a Permitted User may publish, reproduce and/or otherwise distribute reports generated using the Software or any components thereof to other Permitted Users and individuals of Licensee who have a need to receive such reports and components thereof in the course of their employment. Licensee shall take all precautions that are reasonably necessary and within its control to prevent access to the Software or any component thereof by third party using Licensee’s access credentials and prevent any unauthorized distribution or redistribution of the Software using Licensee’s access credentials.
Licensor may suspend access to the Software if Licensor (i) believes that there has been unauthorized access to the Software or a material violation of the forgoing restrictions, (ii) detects a material security threat to the Software or Hosting Service (defined below), or (iii) otherwise reasonably believes that there is activity that poses a threat to the intellectual property of Rapid Recon or the rights of other Rapid Recon licensees; provided, however, that in such circumstances, Rapid Recon shall immediately notify Licensee of the action taken by Rapid Recon and the reasons therefore.
LICENSEE DATA
Licensee warrants that it either owns or has the right to use the Licensee Data as contemplated hereunder. Rapid Recon agrees that all Licensee Data shall remain confidential and shall not be voluntarily disclosed by Rapid Recon without the prior written consent of Licensee except in accordance with the terms of the License or as may be required by law, regulatory body, governmental agency or court order. Any costs and expenses incurred by Rapid Recon in connection with third party document requests or subpoenas for production of information relating to the Licensee Data shall be borne by Licensee.
At all times Rapid Recon shall: (i) use the same standard of care to protect the Licensee Data as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care; (ii) not use the Licensee Data other than as necessary to perform its obligations under this License; and (iii) disclose the Licensee Data to its employees or agents on a “need to know” basis only, provided that each employee or agent is bound by obligations of confidentiality and restrictions against disclosure at least as restrictive as those contained herein. Upon the written request of the Licensee, Rapid Recon shall return or destroy (and certify such destruction in a signed writing) all Licensee Data, whether in physical or electronic form. However, Rapid Recon may retain a copy of the Licensee Data for archival or compliance purposes. The confidentiality obligations set forth in this section shall survive the termination of this License. Rapid Recon shall not have any obligations under this License with respect to any Licensee Data that is: (a) already known to Rapid Recon at the time of the disclosure; (b) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of Rapid Recon; (c) subsequently disclosed to Rapid Recon on a non-confidential basis by a third party not having a confidential relationship with Licensee which rightfully acquired such information; or (c) communicated to a third party by Rapid Recon with the express written consent of Licensee.
Notwithstanding the foregoing, Rapid Recon may aggregate data provided by, or collected from, Licensee and other licensees in an anonymized manner (“Aggregated Data”) and may make such Aggregated Data available to its licensees or third parties. Licensee agrees to such use by Rapid Recon; provided, however, that no specific Licensee identifying information shall be used in the Aggregated Data.
WARRANTY DISCLAIMERS
Rapid Recon warrants only that it has the right to provide Licensee with access to the Software and Hosting Service in accordance with this License. If the Software fails to perform in accordance therewith, then the sole warranty obligation of Rapid Recon and Licensee’s exclusive remedy shall be for Rapid Recon to use its reasonable efforts to remedy such failure and to conform to the express covenants and conditions set forth in this License.
Rapid Recon contracts with third parties for the provision of information, services and data used in the Software and Hosting Services. This includes, for example, information relating to safety recalls received from AutoAp, Inc. (AutoAp). Rapid Recon has no role in the generation or verification of the information received from AutoAp or any other Third-Party Licensor. Neither Rapid Recon nor AutoAp are responsible for vehicle recall status, accuracy, timeliness, completeness, or anything else relating to information obtained from third parties or websites such as automobile original equipment manufacturers (OEMs), safercar.gov, National Highway Traffic Safety Administration (NHTSA) or any other entity that compiles and reports safety recall information. RAPID RECON DISCLAIMS ANY AND ALL LIABILITY FOR ANY CLAIM BASED ON, OR RELATED TO, INFORMATION CONCERNING SAFETY RECALLS, WHETHER RECEIVED FROM THIRD PARTIES, OR GENERATED BY RAPID RECON, INCLUDING, BUT NOT
LIMITED TO, ANY CLAIM OF LIABILITY BASED ON INACCURACIES, TIMELINESS, OR INCOMPLETENESS OF SAFETY RECALL INFORMATION.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR USE FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR TITLE. EXCEPT AS OTHERWISE EXPRESSLY WARRANTIED HEREUNDER, THE SOFTWARE AND HOSTING SERVICES ARE
PROVIDED “AS IS”. RAPID RECON MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING THE QUALITY, COMPLETENESS, TIMELINESS, CURRENTNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE OF THE SOFTWARE OR THE HOSTING SERVICES. RAPID RECON EXPRESSLY DISCLAIMS ANY WARRANTIES THAT THE SOFTWARE AND HOSTING SERVICE WILL BE ERROR-FREE OR THAT THEIR AVAILABILITY WILL BE UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RAPID RECON OR ITS EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
LIABILITY LIMITATIONS
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LICENSE, IN NO EVENT WHATSOEVER SHALL RAPID RECON AND ITS THIRD-PARTY LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES OR AGENTS (THE “RAPID RECON PARTIES”) BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE,
INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS PROFITS), WHETHER IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE ACCESS OR USE OF, OR INABILITY TO ACCESS AND USE, THE SOFTWARE OR HOSTING SERVICE. THE RAPID RECON SHALL PARTIES NOT BE LIABLE FOR ANY INACCURACY OR INCOMPLETENESS IN, OR DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN THE SOFTWARE OR HOSTING SERVICE, OR ANY OTHER INFORMATION SUPPLIED TO LICENSEE BY RAPID RECON. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE RAPID RECON PARTIES WITH RESPECT TO THIS LICENSE, THE SOFTWARE AND THE HOSTING SERVICES EXCEED THE AMOUNTS RECEIVED BY RAPID RECON IN LICENSE FEES FROM LICENSEE IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
INDEMNIFICATION
Licensee shall indemnify Rapid Recon, its Third-Party Licensors, and their respective officers, employees and agents (“Indemnitee(s)”) from and against all claims, liabilities, losses, damages and costs (including reasonable attorneys’ fees) suffered by each Indemnitee arising from or related to a breach or any violation of this License by (i) Licensee’s Permitted Users, or (ii) any users that access and use the Software through the use of any Permitted Users login and password credentials (whether or not approved by Licensee or any Permitted User).
LICENSOR AUDIT RIGHT
Upon written request of Licensor, but not more than once in each calendar year (unless there is documented reason for an additional audit), Licensee shall permit an independent consultant, selected by Licensor and acceptable to Licensee, which acceptance shall not be unreasonable withheld, conditioned or delayed, to have access during normal business hours to those records of Licensee as may be reasonably necessary to verify the compliance with the terms and conditions of this License and Licensee’s order for services. If such independent consultant’s report shows any violation of the terms and conditions that would result in additional license fees, Licensee shall remit to Licensor the amount of such underpayment within thirty (30) days after Licensee’s receipt of such report, and if such underpayment exceeds five percent (5%) of the typically monthly fees due from Licensee, Licensee shall reimburse Licensor for its reasonable out-of-pocket expenses for the audit, upon submission of supporting documentation.
ELECTRONIC COMMUNICATIONS
The parties are authorized to communicate with each other through the Internet, and each party acknowledges that use of electronic mail systems or other communication services that use the Internet involve the transmission of information through computer systems that are not controlled or maintained by either Licensee or Rapid Recon. Because of the nature of Internet communications, each party acknowledges that the privacy, confidentiality, timeliness and integrity of information transmitted over the Internet in connection with this License cannot be assured. Nevertheless, Licensee hereby authorizes Rapid Recon to provide Licensee information relating to the License through electronic mail systems or other communication services that use the Internet. Licensee authorizes Rapid Recon to accept and rely on communications received from Licensee through Internet communications services, although Rapid Recon or Licensee reserves the right to require that specific communications be provided in writing. Each party agrees that the other party shall not be liable for any damages resulting from the use of Internet communications, provided that the party’s use of electronic communications was reasonable under the circumstances and any such damages resulted from acts beyond the party’s control.
ASSIGNMENT; SUCCESSORS AND ASSIGNS
This License may not be assigned by any party without the prior written consent of the other party; provided, however, that a sale of all or substantially all of Rapid Recon’s assets or equity interests shall not constitute an assignment. This License shall be binding upon the parties, their successors, legal representatives, and permitted assignees.
CHANGE IN CONTROL OF LICENSEE
If at any time during the term of this License, a Change in Control (as defined below) occurs with respect to Licensee, Licensee shall as soon as it is permitted to do so under applicable law, inform Rapid Recon in writing of any such Change in Control. Rapid Recon shall have the right to terminate this License upon sixty (60) days prior written notice to Licensee in the event of a Change in Control of Licensee. A “Change in Control” shall mean (i) the consummation of a merger, consolidation or sale or other disposition of substantially all the assets of Licensee; or (ii) the acquisition by any employee, entity or group of beneficial ownership of 50% or more of either (A) the then outstanding ordinary shares of Licensee or its direct or indirect parent company or (B) the combined voting power of the then outstanding voting securities of Licensee or its direct or indirect parent company entitled to vote generally in the election of directors.
GOVERNING LAW; JURISDICTION AND VENUE
This License shall be governed by, and construed in accordance with, the laws of the State of California applicable to contracts made and performed in California. Licensee hereby irrevocably agrees and consents to the personal and exclusive jurisdiction and venue of the California state courts and the United States District Court for the Northern District of California for all disputes arising from or related to this License.
INJUNCTIVE RELIEF
In the event of a material breach by Licensee of the provisions of the “User Restrictions; Ownership of Materials” terms of this License, Licensee acknowledges and agrees that damages would be an inadequate remedy and that Rapid Recon shall be entitled to preliminary and permanent injunctive relief, but nothing herein shall preclude Rapid Recon or a Data Vendor, as applicable, from pursuing any other action or remedy for any breach or threatened breach of this License. The remedies provided hereunder are cumulative and not in limitation for Rapid Recon’s other rights and remedies.
ENTIRE AGREEMENT
Each party acknowledges that it has read this License and that together with all written amendments, appendices, and Exhibits, this License constitutes the entire and exclusive agreement between Licensee and Rapid Recon with respect to the subject matter hereof and supersedes any previous or contemporaneous agreement or understanding between the parties and no statement, agreement, or understanding not contained herein shall be enforced or recognized. THIS LICENSE CANNOT BE MODIFIED OR SUPPLEMENTED BY ORAL STATEMENTS MADE EITHER BEFORE OR AFTER EXECUTION OF THIS LICENSE AND ANY SUCH STATEMENTS DO NOT CONSTITUTE WARRANTIES. NO COLLATERAL OR PRIOR STATEMENTS, REPRESENTATIONS, UNDERSTANDINGS, AGREEMENTS, OR WARRANTIES (EXPRESS OR IMPLIED) ARE A PART OF THIS LICENSE.
WAIVER; AMENDMENT
No term or provision hereof shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse shall be in writing and signed by the waiving party. Should either party consent, waive or excuse a breach by the other party, such shall not constitute a consent to, waiver of, or excuse of any other different or subsequent breach, whether or not of the same kind as the original breach. No amendment of this License shall be effective unless in writing and signed by authorized representatives of both parties.
HEADINGS
The headings in this License are intended for convenience only and shall not be deemed to constitute a part hereof or to limit, characterize, or in any way affect the interpretation of the provisions of this License.
FORCE MAJEURE
Each party’s performance hereunder shall be excused without liability and neither party shall be liable to the other party for any loss, injury, delay or damages suffered by the other in the event of any event or contingency beyond such party’s control, including but not limited to: foreign or domestic embargoes; acts of God; terrorist acts; the adoption or enactment of any law, ordinance, regulation, ruling, or order directly or indirectly interfering with performance hereunder; lack of the usual means of transportation; technological failure; fires; floods; explosions or strikes; earthquakes.
NOTICES
All notices and other communications under this License shall be: (i) in writing; (ii) delivered by hand (with receipt confirmed in writing), by registered or certified mail (return receipt requested), or by facsimile transmission (with receipt confirmed in writing), to the address or facsimile number set forth below the parties’ signatures herein or to such other address or facsimile number as either party shall specify by a written notice to the other; and (iii) deemed given upon receipt.
SEVERABILITY
Rapid Recon and Licensee intend this License to be a valid legal instrument, and if any court having competent jurisdiction shall determine that one or more of the provisions contained in this License shall be unenforceable in any respect, then such provision shall be deemed limited and restricted to the extent that such court shall deem it to be enforceable, and as so limited or restricted shall remain in full force and effect. If any such provision or provisions shall be deemed wholly unenforceable, the remaining provisions of this License shall remain in full force and effect and shall in no way invalidate any other provision of this License, all of which remain in full force and effect.
SURVIVAL
This Section and Sections “Definitions”, “License Fee; Payment; Taxes” (as it relates unpaid fees, collection costs and taxes), “Term and Termination” (as it relates to termination obligations of Licensee), “User Restrictions; Ownership of Materials” (as it relates to ownership rights of Licensor), “Licensee Data” (as it relates to confidentiality obligations and aggregated data), “Warranty Disclaimers”, “Liability
Limitations”, “Indemnification”, “Licensor Audit Right”, “Governing Law”, Jurisdiction and Venue”, “Entire Agreement”, “Waiver and Amendment”, “Headings”, “Notices”, “Severability”, this “Survival” provision and those other sections that by their nature are intended to survive, shall survive termination of this License.
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