End User License Agreement
Service Lane eAdvisor™
End User License Agreement
This Service Lane eAdvisor™ End User License Agreement (“Agreement“) is a binding agreement between you (“you” or “your”) and B & G Technologies, LLC d/b/a Service Lane eAdvisor™ (“Company”). This Agreement governs your use of the Service Lane eAdvisor™ web application and software services such as the related communications and payment functionality provided for use on mobile platforms (including all related documentation, the “Application”). The Application is licensed, not sold, to you.
BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application for use on your server (in the case of dealership subscribers) (“Server”) or mobile device (in the case of dealership customers) (“Mobile Device“); and
(b) access, stream, download, and use on such Server or Mobile Devices the Content and Services (as defined in Section 5) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement applicable to such Content and Services as set forth in Section 5.
2. License Restrictions. Licensee shall not:
(a) copy the Application, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, except to the extent expressly provided herein; or
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. The design, text, graphics and selection and arrangement thereof and services and the legal forms, documents, guidance and all other content found on our website, application, and web application are copyright Service Lane eAdvisor. All rights reserved Service Lane eAdvisor™, and Service Lane eAdvisor.com are trademarks of the Company. These and any other Company products or service names or slogans displayed on Company products are trademarks of Company. You may not copy, imitate or use them, in whole or in part, without our prior written consent. In addition, the look and feel of Company is the service mark, trademark and/or trade dress of the Company and you may not copy, imitate or use it, in whole or in part, without our prior written consent. The names of actual companies and products you might encounter through us may be the trademarks of their respective owners. Nothing in these Terms or the Services should be understood as in any way granting any license or right to use any of Company’s trademarks displayed on our website
6. Geographic Restrictions. The Content and Services are based in the state of Michigan in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
All Updates must promptly be downloaded and installed as the Application or portions thereof may not properly operate otherwise. All Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
8. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials“). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company 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.
(a) The term of Agreement commences when you download the Application and will continue in effect for the period specified in the Subscription Agreement unless terminated by the Company as set forth in this Section 9. Notwithstanding the foregoing, if no term is specified in the Subscription Agreement, this Agreement will automatically renew for one (1) year periods unless you notify the Company in writing of your desire to not renew within thirty (30) days prior to the expiration of the then applicable term.
(b) Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion, or otherwise with or without cause. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application and delete all copies of the Application from your Server or Mobile Device (as the case may be) and account.
(d) Termination will not limit any of Company’s rights or remedies at law or in equity.
10. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
13. Refunds and Chargebacks. With respect to any merchant dealerships, the Company connects consumers, dealers and credit card processors to provide convenient, secure payment services. The Company is not a party in the financial transaction itself. If there is a dispute over the payment amount, or the services provided, this must be resolved between you and the other parties to the transaction which may include yourself, the consumer, the dealer, and the credit card company. You are responsible for complying with any payment obligations for goods or services provided to you including any obligations to a dealership or other merchant policies and obligations under cardholder agreements. If you are making a payment on behalf of another party, you acknowledge that you have reviewed the invoice and verified with that party that they approve the invoice.
14. Opt-In Tracking and Security Compliance; Payment Processing. Automobile dealership licensees agree that they are solely responsible for tracking dealership customer opt-ins and opt-outs that are manually gathered and for providing any required related notice to Company and for taking action necessary to give effect to such opt-ins or opt-outs. Automobile dealership licensees also agree to comply with prevailing industry standards related to workstation and server security, including the timely installation of all software, hardware, firewall and operating system security updates or patches. Automobile dealership licensees utilizing Company’s payment services agree to maintain records of all devices and device inspections for all point of sale devices employed as part of the Company payment Services. All dealership licensees are required to be PCI compliant in accordance with their applicable merchant PCI classification in order to process payments with Company services. These requirements vary according to the Company payment services used by each automobile dealership licensee and additional requirements may apply to individual dealerships, such as may be required by their payment or gateway processor, merchant bank, accepted card brands and the point of sale devices in use by the automobile dealership. Additional financial and security contractual requirements or government regulations may apply in certain jurisdictions, including Canada. Automobile dealerships and their employees are solely responsible for any security breach or service disruption which is caused in whole or in part by the automobile dealership licensee or its employees.
15. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
16. 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 in full force and effect[; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
17. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule.
19. Arbitration. Any controversy or claim arising out of or related to this Agreement or use of the Application, including disputes arising from or concerning interpretation, violation, invalidity, non-performance, or termination, shall be exclusively settled through binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Expedited Procedures, which may be found at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf or by searching the American Arbitration Association’s website. One arbitrator shall preside over the arbitration. To the fullest extent allowed under governing law, you agree that this arbitration will only be on an individual basis, and not on a class or collective basis. In any such arbitration, Company will pay all costs unique to arbitration, except that you shall be required to pay a portion of the filing fee equal to the filing fee for a complaint filed in the state court serving your locale that would otherwise have had subject matter jurisdiction over the dispute. The locale for any such arbitration will be Southfield, Michigan.
21. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.