1. Licenses. On the terms and subject to the conditions set forth in this Agreement, Carster hereby grants to Client a non-exclusive, nontransferable, right and license to use and/or otherwise exploit, during the Term, the Licensed Data, solely for purposes of the Permitted Use and for no other purpose, including the right of Client to make such copies of the Licensed Data solely as may be necessary for Client to efficiently and effectively engage in the Permitted Use. The Licensed Data shall be delivered by Carster to Client as described above. Except for the foregoing limited license rights, all right, title and interest in and to the Licensed Data, including without limitation all intellectual property rights therein, shall be and remain owned exclusively by Carster.
2. Limitations on Use by Client. Except as expressly permitted by this Agreement or otherwise agreed in writing by Carster, Client shall not (a) copy, reproduce, publish or distribute any of the Licensed Data to any person, including without limitation to any affiliate of Client; (b) grant any sublicense or sub-authorization, assign in whole or in part or otherwise grant or purport to grant to any person any right to obtain, use, exploit, copy, publish or distribute any of the Licensed Data; (c) use the Licensed Data for any use or purpose other than the Permitted Use, including, without limitation, in any manner that condones any activities in violation of law, or display any of the Licensed Data in any website or other media that contains profane, obscene or pornographic content or content that denigrates a particular group based on gender, race, religion, sexual preference, handicap or other characteristic; or (d) copy or obtain any Carster-provided data, editorial content or photographs (whether or not included in the Licensed Data) directly from Carster’s website, currently located at www.mycarster.com.
3. Payment. In consideration for the licenses granted by Carster to Client hereunder and any other services provided by Carster to Client, Client shall pay to Carster the non-refundable License Fee in the amount agreed to. The License Fee shall be payable (and paid) by Client in accordance with the payment schedule set forth in this Agreement, including, where applicable in any Exhibit hereto.
4. Term; Renewal; Termination. The term of this Agreement (the “Term”) shall consist of (a) the initial term, which shall commence on the Effective Date and shall continue through the initial term stated above (the “Initial Term”) (see Cover Page), and (b) such additional 1-month (unless otherwise stated above) terms as may be determined in accordance with the following sentence (each a “Renewal Term”). This Agreement shall automatically renew for a first Renewal Term and subsequent Renewal Terms unless either party notifies the other party of its intent not to renew this Agreement at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as applicable, in which event this Agreement shall terminate as of the last day of the Initial Term or Renewal Term. Either party may terminate this Agreement immediately upon written notice if the other party is in material breach of any term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Upon any termination or expiration of this Agreement, Client shall remove from its servers, systems and electronic files and shall immediately destroy all copies of the Licensed Data and, upon Carster’s request, shall certify such removal and destruction in writing. In addition, upon any termination of this Agreement by Carster as a result of Client’s material breach hereof (including, without limitation, as a result of Client’s failure to pay when due all or any portion of the License Fee or any other amount owed to Carster hereunder) or by Client for any reason other than as a result of Carster’s material breach hereof, then in addition to and not in limitation of any other rights or remedies that may be available to Carster in connection therewith, Client shall be liable to pay to Carster, and shall immediately pay to Carster upon receipt of an invoice therefor, (i) the unpaid portion of any License Fee and other amounts that have accrued hereunder and are then unpaid and (ii) the portion of the License Fee and such other amounts as would have otherwise been payable to Carster hereunder from the date of such termination through the remaining Term of this Agreement.
5. Confidentiality. During the Term and thereafter, neither party will disclose to any third party or use any Confidential Information of the other party, except (a) to each party’s respective agents and employees who have a need to know, (b) to the extent necessary (redacted to the greatest extent possible) to comply with law, (c) in order to enforce or exercise its rights under this Agreement, or (d) as mutually agreed by the parties in writing. For purposes of this Agreement, “Confidential Information” shall mean any confidential or proprietary information disclosed by one party to the other, including the terms of this Agreement and information generated by the parties in the course of performance, but shall not include (i) information in the public domain, or (ii) except for the terms of this Agreement and information generated by the parties in the course of performance, information already legitimately known to the other party at the time of disclosure.
6. Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the full right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to perform the acts required of it hereunder, and (b) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Further, Carster represents and warrants to Client that (i) Carster has all necessary rights in the Licensed Data to perform this Agreement in accordance with its terms, and (ii) Carster has used commercially reasonable efforts to obtain accurate and complete information from reliable sources in the course of the compilation of the Licensed Data.
7. Disclaimer. Client acknowledges that (a) any collection and compilation of information of the kind included in the Licensed Data entails the likelihood of some human and machine errors, omissions, delays, interruption and losses, and (b) the sole responsibility of Carster under this Agreement is to provide the Licensed Data to Client in accordance with the terms hereof, and Carster shall not be responsible for any use or implementation by Client of the Licensed Data. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING IN SECTION 6 TO THE CONTRARY, CLIENT ACKNOWLEDGES AND AGREES THAT (i) THE LICENSED DATA IS PROVIDED “AS IS”; (ii) Carster MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, COMPLETENESS OR CURRENCY OF THE LICENSED DATA; AND (iii) EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT, Carster EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED AND WHETHER ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF Carster OR ITS AGENTS, EMPLOYEES OR 3 I-1316751.4 OTHER REPRESENTATIVES (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT).
8. Limitation of Liability. EXCEPT FOR LIABILITY IN RESPECT OF (i) A PARTY’S BREACH OF SECTION 5 ABOVE, (ii) THE PARTIES’ RESPECTIVE INDEMNITY OBLIGATIONS UNDER SECTION 9 BELOW OR (iii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE EMPLOYEES, REPRESENTATIVES OR AFFILIATES, BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT SUCH PARTY OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY (HOWEVER CAUSED), STOPPAGE OF WORK, IMPAIRMENT OF ASSETS OR OTHERWISE, AND WHETHER ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY IN TORT OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE LICENSES OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, IN NO EVENT SHALL Carster’S TOTAL LIABILITY FOR A CLAIM OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO Carster UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE CLAIM.
9. Indemnification. Each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party and its respective officers, directors, employees and agents (collectively, the “Indemnified Parties”) from and against any claim, demand, action or suit asserted by a third party, and all costs, liabilities, judgments, expenses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by an Indemnified Party in connection with any such third party claim, arising out of, resulting from or related to (a) the Indemnifying Party’s breach of any of its representations and warranties hereunder, or (b) allegations that the Indemnifying Party’s business, products and/or services infringe any patent, trademark, copyright or any other proprietary right of a third party or violate any law. In addition, Client (as the Indemnifying Party) shall indemnify and hold harmless Carster (as the Indemnified Party) from and against any and all Losses incurred by Carster arising out of, resulting from or related to Client’s use of the Licensed Data (i) in violation of any applicable laws and/or (ii) for any purpose other than the Permitted Use.
11. Miscellaneous. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of New York, without giving effect to the conflict of law rules of such state. Any disputes under this Agreement may be brought exclusively in, and the parties hereby consent to the exclusive jurisdiction of, any state or federal court located in New York, NY. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY ACTS OR OMISSIONS OF ANY OF THE PARTIES HERETO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY. No changes, amendments or modifications to this Agreement shall be binding unless set forth in a writing duly executed by the parties. The provisions of Section 5 and Sections 7 through 11 of this Agreement shall survive any expiration or termination of this Agreement. Neither party will be liable to the other party for any default or delay in the performance of any of its obligations hereunder (other than its obligation to pay any monies owed to the other party or any third party) if the default or delay is caused by circumstances or conditions that are beyond such party’s reasonable control. If any provision of this Agreement is held invalid or unenforceable for any reason, such provision shall be deemed to apply only to the minimum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable in accordance with its terms. This Agreement is not intended to benefit any third party, and the parties do not intend to create any third party beneficiary rights under this Agreement. No failure or delay on the part of any party hereto to exercise any right, power or remedy shall operate as a waiver thereof. Client may not assign this Agreement without the prior written consent of Carster. This Agreement, including all Exhibits hereto, constitutes the entire agreement between the parties regarding the subject matter hereof. This Agreement may be executed in counterparts (including by facsimile or other electronic transmission), each of which shall be deemed to be an original, but both of which, taken together, shall constitute one and the same instrument
10. Privacy for camera usage. As part of the VIN Scan we require you to use your phone’s camera. These images are not stored and are used to pull the VIN from a vehicle.