Dealer LOGIX® License Agreement
These Terms and Conditions (“Terms”) govern all Products and Services provided by DTG to Customer (including employees and subcontractors, referred to as “you”). Capitalized terms not defined in this License Agreement are defined in the Order Form executed by Customer.
Agreement. The “Agreement” is comprised of these Terms and Conditions, the documents referenced herein, and all Order Forms and Statements of Work entered into by the parties.
License. So long as you comply with your obligations under the Agreement, during the Term you are granted the right to use, according to the terms of any documentation provided by DTG and in compliance with all applicable laws and regulations, each Product licensed by you under the Agreement in the form provided by DTG for your internal business needs but not to benefit any other party (“License”). Without limitation, you will not use any Product to provide service bureau, outsourcing or similar services to any party.
Products. Each Product is described in the Product description (“Product Description”) included at [link]. Services are described in the Services description (“Services Description”) included at www.dealerlogix.com/productsandservices
Hosted Products. Certain Products are provided by DTG in a hosted environment where the Product or a portion of the Product is not loaded onto your servers or computers but resides on a server owned or contracted by DTG and is accessed remotely by your authorized Users (each a “Hosted Product”) through an internet connection. Your right to access and use Hosted Products is subject to your compliance with DTG’s Hosted Product Policy available at www.dealerlogix.com/hostedproductpolicy. You are responsible for all hardware, software and connectivity required to access the Hosted Products.
Users. Each Customer employee or subcontractor using a Product is a “User,” and you may have the number of Users for which you have paid License Fees. Every User requires a separate ID. Only Users are permitted to use or access a Product.
Services. Services will be provided according to DTG’s Services descriptions described at www.dealerlogix.com/productsandservices and any Statement of Work entered into by the parties (“Services Documentation”).
Deliverables. Items delivered by DTG (“Deliverables”) are part of the Product(s) licensed by you to which they relate and you have the right to use Deliverables only as part of the Products.
Changes. DTG may change Products, Services and these Terms, including the documents posted at www.dealerlogix.com/productsandservices and any change will be effective 30 days after they are posted.
Payments. Payments will be made each month as set forth in each Order Form, or if not set forth in the Order Form, then 20 days after receipt of DTG’s invoice. You are responsible for all Fees described in the Order Form as well as all agreed expenses and all taxes and government charges relating to DTG’s provision of Products and Services other than taxes on the income of DTG. Late payments will accrue interest until paid at the lesser of 1.5% per month or the maximum amount permitted by law. Services and Hosted Products may be suspended for your failure to pay amounts when due, and reinstating Services and Products may be subject to a reinstatement fee.
Confidentiality. In connection with your use of Products and Services, you will receive confidential and proprietary information of DTG and third parties (“Confidential Information”) which includes any nonpublic information written or oral relating to the Products, Services, Deliverables, or the business, finances, plans, and activities of DTG and its suppliers. You will keep Confidential Information in confidence, only use it for your permitted use of Products and Services, and not disclose it to any third party except your advisors who agree to provisions regarding Confidential Information at least as favorable to DTG as those in this Section.
Ownership. No rights are granted to you except for the License, and DTG and its licensors retain all ownership and other rights to the Products and Deliverables, including to all derivative works thereof. DTG reserves the right to use aggregated and anonymized data processed by and/or stored in Hosted Products. You have no rights to the trademarks, tradenames, logos and other symbols used by DTG and its licensors in connection with the Products and Services. You will not reverse engineer, decompile, disassemble, reproduce, prepare derivative works of, modify or sublicense Products except as specifically permitted under the Agreement. You will only use Hosted Products by accessing them as permitted by DTG, and you will not download or attempt to download Hosted Products. You will only make copies of Products as permitted by DTG to assist you in your permitted use of the License. You will not transfer, lend, lease, sublicense or pledge any of your rights to use the Products, and any attempt by you to do any of the foregoing is void.
Website. During the Term, you will have access to certain materials posted at the DealerLogix website, a website for Product users. All information on that website relating to Products and Services is Confidential Information. You will comply with the Forum User Policy posted on the Forum.
Product Ideas. You may submit to DTG in writing or orally ideas for new Products or Services, improvements to Products or Services, and other suggestions for DTG’s business (“Suggestions”). You will only submit Suggestions that you have the right to submit to DTG, and no third party will have any rights in any Suggestions. All Suggestions become the sole property of DTG upon submission, and you hereby transfer all right, title and interest to all Suggestions to DTG. On request from DTG you will execute such documents and take such actions as DTG reasonably requests to perfect its ownership of all Suggestions. DTG may incorporate Suggestions into its Products and Services as it determines, but it is not obligated to do so, or to provide you with any accounting, payments, or information relating to any Suggestion.
Limited Warranty. DTG provides the following “Limited Warranty” for Products and Services: Products will perform substantially as described in the User Manual posted at the Forum, if any, and Services will be provided substantially as described in the Services Documentation.
Limited Remedy and Exclusions. During the Term, so long as you are in compliance with the Agreement, DTG will use reasonable efforts to cure any breach of the Limited Warranty for which you provide written notice describing the breach in sufficient detail for DTG to determine the source of the breach. The Limited Warranty does not apply to problems caused by your computer equipment, software or data, by any items not provided by DTG, or by the actions or omissions of any party other than DTG. EXCEPT FOR THE LIMITED WARRANTY, PRODUCTS AND SERVICES, INCLUDING DELIVERABLES, ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND DTG DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR NON-INFRINGEMENT. DTG DOES NOT WARRANT THAT PRODUCTS WILL BE ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
Limitations. EXCEPT FOR (1) PAYMENT OF FEES AND OTHER AMOUNTS DUE FOR PRODUCTS AND SERVICES, (2) A BREACH OF A PARTY’S OBLIGATIONS RELATING TO CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS, AND (3) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR (a) AN AMOUNT IN TOTAL GREATER THAN $10,000 OR (b) CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, RELIANCE OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, GOODWILL OR DATA, REGARDLESS OF THE BASIS OF THE CLAIM AND REGARDLESS OF WHETHER THE PARTY KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES DISCLAIM THE PROVISIONS OF, AND WAIVE ANY RIGHTS UNDER, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, WHICH WILL NOT APPLY TO THE PRODUCTS OR SERVICES.
Compliance. You will comply with all applicable legal and contractual obligations relating to privacy, security, integrity and confidentiality of data stored in or processed by any Product, and you will take appropriate measures to ensure such compliance.
Infringement. During the Term, so long as you remain in compliance with the Agreement, if any Product is determined in a final judgment to, or DTG determines that it is likely that it may be found to, infringe the rights of any third party arising under U.S. copyright or patent laws, DTG may obtain the right for you to use such infringing item, provide a reasonable replacement, or by notice terminate your License for the infringing Product and refund the Fee paid for such infringing Product for any time after such termination.
Indemnification. During the Term, so long as you remain in compliance with the Agreement, DTG will indemnify, defend and hold you harmless from any claims by a third party that any Product or Deliverable in the form delivered by DTG infringes the third party’s rights arising under U.S. copyright and patent laws. You will indemnify, defend and hold harmless DTG from any claims by a third party relating to your use of Products and Deliverables except to the extent you are indemnified by DTG in the preceding sentence.
Termination. The Agreement may be terminated by either party on notice for the breach of the Agreement remaining uncured 10 days after notice from the non-breaching party or if the other party is bankrupt, insolvent, has a receiver appointed for any portion of its business, liquidates, ceases doing business or makes an assignment for the benefit of its creditors. On termination you will immediately destroy, delete and/or return to DTG all Products and Confidential Information, and you will have no further right to such items. The following Sections of this Agreement will survive termination to the extent applicable thereafter: Deliverables, Payments, Confidentiality, Ownership, Product Ideas, Limitations, Compliance, Indemnification, Termination, Audits, Third Party Software, Arbitration and General Sections.
Audits. DTG and its licensors may access and audit your systems and records to confirm that you have paid all Fees owed and have otherwise complied with your obligations under the Agreement.
Third Party Software. Certain Products and Services may include third party software or other items subject to additional terms located at [link], listed below, or attached to an Order Form, and all of such additional terms are incorporated into and made a part of these Terms. Each third party licensing software or other items to DTG is an intended third party beneficiary of the Agreement and the rights of DTG (including all provisions that limit liability, restrict warranties and otherwise protect DTG) under the Agreement will apply to all of such third parties as though references in the Agreement to DTG are references to such third parties, but no such party has any direct obligations to you under the Agreement except as expressly set forth in a Product and Services Description.
No Assignment. You may not assign any of your rights or delegate any of your obligations under the Agreement. Your subcontractors and employees will comply with the terms of the Agreement applicable to you.
Arbitration. Except for temporary, preliminary and permanent injunctive relief and specific performance which may be obtained in any court of competent jurisdiction, any dispute arising under or relating in any way to the Agreement will be resolved exclusively by final and binding arbitration in Denver, Colorado under the rules of JAMS [www.jamsadr.com]. Each party will bear one-half of the cost of arbitration charged by JAMS. Any court action permitted by this Section may be brought in the courts located in Denver, Colorado and the parties consent to the personal and subject matter jurisdiction and venue of such courts. Breach of the following Sections will result in irreparable harm to the non-breaching party for which damages are not an adequate remedy, and the non-breaching party may obtain temporary, preliminary and permanent injunctive relief and specific performance without the posting of bond or other security, or if required, then the minimum amount required: License, Hosted Products, Users, Delvierables, Confidentiality, Ownership, Product Ideas, Compliance, Third Party Software, No Assignment, and Arbitration Sections.
Force Majeure. The performance of either party, except for the payment of amounts when due, will be excused to the extent the party is unable to perform because of circumstances beyond its reasonable control.
General. The Agreement is the complete and final agreement of the parties relating to the purchase by Customer and the delivery by DTG of any products and services and supersedes and cancels any prior communications, representations, understandings and agreements. No different or additional terms set forth in any order form or other document are binding on DTG unless specifically accepted by DTG in writing. Modifications to or waivers of any rights under the Agreement will only be effective if in writing signed on behalf of each party. The term “including” means by way of example and not limitation.
Dealer LOGIX® Connect Supplemental Terms and Conditions
These Supplemental Terms and Conditions (“Supplemental Terms”) apply to your use of DealerLOGIX Connect.
Supplemental Terms. These Supplemental Terms are incorporated into and made a part of the DealerLOGIX Terms and Conditions, and these Supplemental Terms control over any direct conflict with the DealerLOGIX Terms and Conditions.
License. You may only use Connect as an interface between Products and a properly licensed Dealer Management System (“DMS”) from a third party licensor approved by DTG (“Licensor”). Connect is a Hosted Product, and you will not have any right to access Connect separately or to make any copies.
Licensors. Each Licensor reserves all rights to its DMS, and your use of a DMS is subject to the terms of your license with the Licensor. You represent and warrant to DTG that during the Term, you will comply with those terms.
Third Party Rights Connect may contain portions of program code or other items licensed to DTG by a Licensor, and each Licensor will be entitled to enforce the Agreement in connection with your use of Connect as an intended third party beneficiary. Your obligations relating to Connect cannot be modified or terminated without the written consent of each Licensor. You will not disclose any passwords or other security information that are related to Connect. ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event will any Licensor be liable for indirect, incidental, consequential or exemplary damages arising from use, or inability to use Connect, even if they knew of the possibility of such damages.
Termination. Your right to use Connect will immediately terminate upon your breach of the Agreement.
Field of Use Restriction. You may only use Connect to support your internal business operations relating to the Automotive Industry. “Automotive Industry” means the market for: (a) the retail sale of new automobiles, pickups, trucks, vans and other vehicles or new and used automobiles, pickups, trucks, vans and other vehicles, that maintain repair departments and carry stocks of replacement parts, tires, batteries and automotive accessories; or (b) short-term rental of passenger cars and vehicles without drivers; or (c) extended-term leasing of passenger cars without drivers; or (d) the distribution of new automobiles, pickups, trucks, vans and other vehicles or new and used automobiles, pickups, trucks, vans and other vehicles; or (e) the manufacture of new automobiles, pickups, trucks, vans and other vehicles or new and used automobiles, pickups, trucks, vans and other vehicles; or (f) establishments primarily engaged in general automotive repair, the installation, repair, or sale and installation of automotive exhaust systems, transmissions, specialized automotive repair, such as fuel service (carburetor repair), brake relining, front-end and wheel alignment, and radiator repair.
Compliance. Your compliance with all applicable legal obligations under the Agreement includes compliance with the Gramm-Leach-Bliley Act and its implementing regulations ("GLBA"), the Personal Information Protection and Electronic Documents Act of Canada ("PIPEDA") and similar laws regarding privacy, personal and consumer information. You will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (a) ensure against any anticipated threats or hazards to the privacy, security or integrity of information used by or in connection with Connect, and (b) protect against unauthorized access to or use of information used by or in connection with Connect.
Data. Your business data belongs to you, and you represent and warrant to DTG that you have all rights necessary for the use of such data by you in connection with your use of Products. You give DTG and Licensors the right to share required business data with required third parties only if sharing the required business data is necessary for DTG and Licensors to comply with the Agreement or other obligations. Any other use of your business data is subject to DTG’s policies set forth in the Agreement. You authorize DTG and Licensors to use your business data in the manner specified herein. NOTICE TO NORTH CAROLINA DEALERS: THE AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.
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