OPERATEBEYOND SUBSCRIPTION TERMS AND CONDITIONS
This OperateBeyond Subscription Terms and Conditions (this “Agreement”) is an agreement between OperateBeyond, LLC (“OperateBeyond,” “we,” or “us”), and the dealer identified in the Order (defined below) (“Dealer” or “you”), dated as of the date the Order was signed by both OperateBeyond and Dealer (“Effective Date”). This Agreement includes, and incorporates by this reference, any quote, ordering document or Services Order between OperateBeyond and Dealer referencing this Agreement (“Order”) and all amendments and addenda to this Agreement. OperateBeyond and Dealer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
OperateBeyond and Dealer agree as follows:
Section 1. Definitions
“Account” means a single user electronic account permitting Dealer or Authorized Users to access and use the OperateBeyond Platform.
“Applicable Privacy Law(s)”means all applicable data privacy laws, rules, regulations, orders, ordinances, regulatory guidance, and industry self-regulations, including but not limited to the California Consumer Privacy Act, as amended by the California Privacy Rights Act, and other state privacy laws as amended or updated.
“Authorized User(s)” means Dealer’s employees, agents, or other designees specified in the Order that Dealer authorizes to use the Services under this Agreement.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). For the avoidance of doubt, any strategy or business information of Dealer is Dealer Confidential Information.
“Dealer Customer” means the customer of a Dealer.
“Dealer Customer Data” means all data and other information that Dealer’s Customers provide or otherwise make available through the Dealer Website.
“Dealer Customer Personal Information” means any Personal Information relating to Dealer’s Customers that Dealer Customers provide or otherwise make available through the Dealer Website.
“Dealer Data” means any and all data or information provided by Dealer or any Authorized User to OperateBeyond collected through the OperateBeyond Platform or otherwise. For example, Dealer Data includes log-in information for Authorized Users. This includes sensitive, confidential, or personally identifiable information that is transmitted by, processed in some way, or stored in electronic media.
“Dealer Personal Information” means any Personal Information relating to Dealer’s Authorized Users.
“Dealer Website” means the Dealer website that Dealer uses in its trailer business, together with any successor or related website designated by OperateBeyond.
“Design Services” the design, construction, and implementation of a Dealer Website for Dealer to use in its trailer business.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation”means the online documentation relating to the OperateBeyond Platform furnished or made available by OperateBeyond to Dealer.
“Feedback” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Dealer experience using the OperateBeyond Platform or any Services, or with the Services or Results.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.
“Policies” means all restrictions described on the Dealer Website related to the OperateBeyond Platform, and any other policies and procedures related to Dealer’s and Authorized Users’ access and use of the OperateBeyond Platform.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Results” means any tangible or intangible results of the Services, including software modifications, new software, technology, programs, APIs or other materials or information developed, discovered, authored or reduced to practice in the performance of the Services.
“Services” means: (i) Design Services, (ii) the provision of access to OperateBeyond’s Platform, and (iii) any other support and hosting services for the Dealer Website that OperateBeyond will provide.
“Services Order” means a written order that is agreed upon by both Parties describing the performance of specific Design Services under this Agreement.
“Third Party Services” means software or services acquired or licensed by OperateBeyond from a third party that is included in OperateBeyond Platform or otherwise made available to Dealer or its Authorized Users.
“OperateBeyond Marks” means any trademarks, service marks, service or trade names, logos, and other designations of OperateBeyond and its affiliates.
“OperateBeyond Parties” means OperateBeyond and its affiliates, independent contractors, and service providers, and each of their respective members, directors, officers, employees and agents.
“OperateBeyond Platform” means the provision of access to OperateBeyond’s platform with functionality enabling Dealer to customize the Dealer Website, along with any improvements, updates, bug fixes or upgrades thereto.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the OperateBeyond Platform or Documentation of OperateBeyond that is not expressly authorized under the Agreement or otherwise in writing by OperateBeyond.
The terms “Business”, “Controller”, “Processor”, “Sell”, “Service Provider”, and “Share” shall each have the meaning assigned to them under Applicable Privacy Laws. For purposes of this agreement Controller shall include Business and Service Provider shall include Processor.
Section 2 Scope of Services
2.1 Scope of Services. OperateBeyond will use commercially reasonable efforts to provide to Dealer the Design Services that are described in a Services Order agreed upon from time to time by the Parties during the Term (as defined below). Unless otherwise agreed upon by the Parties, each Services Order will be substantially in the form attached as Exhibit A, numbered consecutively and completed to include: (a) a description of the Design Services to be performed under the Services Order; (b) a description of any plans, designs, specifications, recommendations, information, photographs, and other tangible or intangible items to be delivered by OperateBeyond to Dealer in connection with the Design Services (“Deliverables”); (c) a schedule for the performance of the Design Services and delivery of the Deliverables; (d) a budget for the compensation, reimbursable expenses and any other amounts payable to OperateBeyond for the applicable Design Services and Deliverables; and (e) a description of any plans, designs, specifications, documents, computer programs, data and other items to be provided by OperateBeyond.
2.2 Coordination. The Parties shall consult and cooperate to coordinate the Design Services to provide for the effective, efficient, expeditious and orderly performance of the Design Services.
2.3 Changes. Either Party may, from time to time, propose changes in the Design Services to be performed under this Agreement. If any agreed-upon change in the Services causes an increase or decrease in the time required for the performance of any Design Services or in OperateBeyond’s costs to perform any Design Services, then the schedules for performance of such Services and the compensation payable to OperateBeyond shall be equitably adjusted. If the Parties agree upon any such change and related adjustments, the Parties shall prepare, agree upon and sign an amendment to the applicable Services Order or other written instrument evidencing such agreement.
2.4 License. OperateBeyond hereby grants to Dealer a revocable, nontransferable, nonexclusive, worldwide, royalty-free right and license to use the Results solely in connection with Dealer’s use of the OperateBeyond Platform for internal business operations only. The Results may not under any circumstances be distributed by or for Dealer as a separate product.
Section 3 Hosted Services
OperateBeyond will host the Dealer Website on the OperateBeyond Platform and will make it available to Dealer Customers and potential Dealer Customers.
Section 4 Dealer’s Rights in the OperateBeyond Platform
4.1 Rights to Use the OperateBeyond Platform. OperateBeyond hereby grants to Dealer a limited, nonexclusive, nontransferable, revocable right during the Term to:
(a) access and use the OperateBeyond Platform; and
(b) invite and enable up to the additional number of Authorized Users to create an Account and access and use the OperateBeyond Platform. Dealer is responsible for all Authorized Users’ compliance with this Agreement.
4.2 Restrictions; Limitations. Dealer may not use the OperateBeyond Platform in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the rights granted under this Section 4 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the OperateBeyond Platform or using or accessing the OperateBeyond Platform to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the OperateBeyond Platform; (c) downloading (other than page caching) of any portion of the OperateBeyond Platform or any information contained on the OperateBeyond Platform; (d) performing or disclosing any benchmarking or performance testing of the OperateBeyond Platform; (e) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the OperateBeyond Platform or Dealer Data except as authorized in this Agreement; or (f) using the OperateBeyond Platform other than for its intended use. During and after the Term, Dealer will not assert, nor authorize, assist, or encourage any third party to assert, against any of the OperateBeyond Parties, any patent infringement or other intellectual property infringement claim regarding the OperateBeyond Platform that Dealer or any Authorized User has used. The rights granted under this Section 4 are conditioned on Dealer’s continued compliance with this Agreement (including, without limitation, Authorized Users’ compliance with this Agreement), and will immediately and automatically terminate if Dealer does not comply with any material term or condition of this Agreement.
4.3 Changes to OperateBeyond Platform. OperateBeyond may change the OperateBeyond Platform from time to time, including changing or removing features or functionality from the OperateBeyond Platform. OperateBeyond will notify Dealer of any discontinuation of the OperateBeyond Platform.
4.4 Suspension of OperateBeyond Platform. OperateBeyond may, in its sole discretion, immediately temporarily suspend access to or use of the OperateBeyond Platform by Dealer or any Authorized User if Dealer or any Authorized User violates a material restriction or obligation of Dealer or Authorized Users in this Agreement (including any Policies), or if in OperateBeyond’s reasonable judgment, the OperateBeyond Platform or any component thereof is about to suffer a significant threat to security or functionality. OperateBeyond will provide advance notice to Dealer of any such suspension in OperateBeyond’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. OperateBeyond will use reasonable efforts to re-establish the affected OperateBeyond Platform promptly after OperateBeyond determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. OperateBeyond may terminate access to the OperateBeyond Platform if any of the foregoing causes of suspension are not cured within thirty (30) days after OperateBeyond’s initial notice thereof. Any suspension or termination by OperateBeyond under this Section 4.4 will not excuse Dealer from its obligation to make payment(s) under this Agreement. If any Authorized User breaches any term or condition of the Policies, then, in addition to any other remedies available to OperateBeyond, OperateBeyond will have the right, in its sole discretion, to immediately suspend access to the OperateBeyond Platform by the Authorized User who failed to comply with the terms and conditions of the Policies. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
Section 5. Eligibility; Registration; Support; OperateBeyond Responsibilities
5.1 Eligibility. Dealer’s representative entering into this Agreement must be at least 18 years old (or the age of legal majority in his or her state of residence) to purchase a Subscription (defined below), access and use the OperateBeyond Platform and invite Authorized Users. Dealer must ensure all Authorized Users are at least 18 years of age. Dealer represents and warrants that it and all Authorized Users are not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.
5.2 Registration. In order to access and use the OperateBeyond Platform, Dealer and each Authorized User will need to register for an Account on the Dealer Website. Dealer will ensure that Dealer and each Authorized User that is invited to register for an Account provide accurate, truthful, and complete information when creating an Account. OperateBeyond may prohibit an Authorized User’s access to and use of the OperateBeyond Platform at any time for any reason.
5.3 Violations. Dealer is responsible for any access or use of the OperateBeyond Platform under each Authorized User’s Account, including by any third parties that use any Authorized User’s Account. The acts or omissions of any Authorized User or third party under an Authorized User’s Account are considered the Authorized User’s acts or omissions, as applicable.
5.4 Support. During the Term, OperateBeyond will use commercially reasonable efforts to provide support to correct defects in the OperateBeyond Platform identified to OperateBeyond by Customer. OperateBeyond will respond to notice of defects and provide a temporary or complete resolution within twenty-four hours (24 hours) of receipt of the notice of the defect with sufficient detail for OperateBeyond to understand and identify the defect (“Defect Support”). Beyond Defect Support, OperateBeyond will use commercially reasonable efforts to provide technical support and customizations to Dealer and Authorized Users relating to the use and operation of the OperateBeyond Platform, in accordance with the level of support identified in the Order. From time to time, OperateBeyond may need to access and view Dealer Data in order to maintain, debug or repair an issue.
5.5 OperateBeyond Responsibilities.
(a) OperateBeyond Personnel. OperateBeyond is responsible for the performance of its employees and contractors and their compliance with OperateBeyond’s obligations under this Agreement. OperateBeyond may use non-employee contractors or agents for the purpose of providing the OperateBeyond Platform.
(b) Security; Third Party Service Providers. OperateBeyond has established, and will maintain during the Term, commercially reasonable administrative, physical and technical safeguards for the protection of Dealer Data, including use of Third Party Service providers to provide secure hosting services.
Section 6. Fees, Payments, and Taxes
6.1 OperateBeyond Subscriptions. OperateBeyond offers different subscription plans for access and use of the OperateBeyond Platform (each, a “Subscription”) for the duration specified in the Order between OperateBeyond and Dealer (the “Subscription Period”). The Subscription Period will automatically renew for the same duration as the immediately preceding Subscription Period unless either Party provides the other Party notice of non-renewal at least thirty (30) days prior to the renewal date of the Subscription Period.
6.2 Set Up and Platform Fees. Dealer will pay any applicable onboarding or set up fees and the fees for its Subscription to the OperateBeyond Platform as specified in an Order (“Platform Fees”).
6.3 Design Service Fees. Dealer will pay service fees for the Design Services provided by OperateBeyond as specified in the Order (“Design Service Fees” and together with the Platform Fees, the “Fees”).
6.4 Cancellation Policy. DEALER MAY CANCEL ITS SUBSCRIPTION UPON AT LEAST THIRTY (30) DAYS’ BUT NOT MORE THAN FORTY-FIVE (45) DAYS’ NOTICE PRIOR TO THE END OF THE THEN CURRENT SUBSCRIPTION PERIOD BY CONTACTING OperateBeyond AT Accounting@trailercentral.com. DEALER WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO FEES PROCESSED PRIOR TO THE CANCELLATION OF DEALER’S SUBSCRIPTION. WITHOUT LIMITING THE FOREGOING, EXCEPT AS OTHERWISE SET FORTH IN SECTION 7 WITH RESPECT TO DEALER’S TERMINATION FOR OperateBeyond’S MATERIAL BREACH OF THIS AGREEMENT, DEALER WILL NOT RECEIVE A REFUND FOR ANY PARTIAL SUBSCRIPTION PERIOD OR ANY RENEWAL THAT OCCURS DURING THE THIRTY (30) DAY NOTICE PERIOD.
6.5 Payment.
(a) Dealer will provide to OperateBeyond a credit card or other payment method which OperateBeyond will automatically charge for any Fees applicable to each Subscription Period. All such Fees for the Subscription Period will be charged in advance and for the full Subscription Period. Dealer hereby authorizes OperateBeyond to charge the Fees to Dealer’s designated payment method as described in this Section 6.2. For Dealer’s records, OperateBeyond will issue invoices for all Fees at the time Dealer’s payment method is charged.
(b) Claims. If Dealer believes that OperateBeyond has charged Dealer incorrectly, Dealer must contact OperateBeyond no later than sixty (60) days after the date of the charge in which the claimed error or problem appeared, in order to receive an adjustment or credit, if any. Inquiries should be directed to Accounting@trailercentral.com.
6.6 Pricing and Availability. All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. OperateBeyond reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each Subscription Period, upon thirty (30) days prior notice to Dealer (which may be sent by email). Notwithstanding anything to the contrary in Section 6.4, if OperateBeyond exercises its rights under this Section 6.6, Dealer may cancel its Subscription any time between receipt of the notice and the renewal date of the Subscription.
6.7 Taxes. Dealer is responsible for any sales, duty or other governmental taxes or fees due with respect to Dealer’s purchase of a Subscription. OperateBeyond will collect applicable sales tax if it determines that OperateBeyond has a duty to collect sales tax. OperateBeyond will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.
Section 7. Term and Termination
7.1 Term. The term of this Agreement will commence on the Effective Date and will continue for so long as a Subscription Period is in effect unless and until terminated pursuant to Section 4.4, 6.4, or 7.2 of this Agreement (the “Term”). If Dealer’s Order includes a trial period Dealer may terminate the term of this Agreement and any then in-effect Subscription Period for convenience at any time within the time period specified in the Order after the beginning of the Term (the “Trial Period”). Dealer will pay a portion of the Fees for the duration of the Subscription Term prior to termination, or any other Fees for the Trial Period described in an Order. If the Trial Period concludes and Dealer has not terminated, the then current Subscription Period and the Term will continue in accordance with the terms of this Agreement for the remainder of the then-current Subscription Period.
7.2 Termination for Material Breach. If either Party commits a material breach of or default under this Agreement, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 7.2 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Term will terminate.
7.3 Effect of Termination. In the event of any termination of the Term:
(a) all of Dealer’s and each Authorized User’s rights under this Agreement will immediately terminate, the license granted to Dealer in this Agreement will terminate and Dealer and all Authorized Users will immediately cease any access or use of the OperateBeyond Platform and Dealer will return all materials or equipment loaned to it by OperateBeyond;
(b) if OperateBeyond terminates the Term for material breach by Dealer under Section 7.2, then Dealer will remain responsible for the remaining balance of the Fees in Dealer’s Order and Dealer must pay within thirty (30) days all such amounts, as well as all sums remaining unpaid for other Orders under the Agreement plus related taxes and expenses;
(c) OperateBeyond will permit Dealer to access the OperateBeyond Platform for thirty (30) days after the Effective Date of termination solely in order to remove any Dealer Data from the OperateBeyond Platform. Thereafter, OperateBeyond will have no obligation to maintain any Dealer Data or to forward any Dealer Data to Dealer or any third party; and
(d) Sections 1, 4.2, 6, 7.3, 8 through 13 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
If Dealer terminates the Term for material breach by OperateBeyond under Section 7.2, then OperateBeyond shall refund to Dealer within thirty (30) days of termination any unused pre-paid Fees on a pro rata basis for the remaining Term following the month in which the termination is effective.
Section 8. Indemnification
8.1 By Dealer. Dealer will defend, indemnify, and hold harmless the OperateBeyond Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party or Authorized User claim concerning: (a) Dealer’s or Authorized Users’ Unauthorized Use of the OperateBeyond Platform including, without limitation, any use of the OperateBeyond Platform other than as permitted under this Agreement; (b) any Dealer Data or other data or content related to Dealer or Authorized Users which Dealer provides, uploads, or inputs into the OperateBeyond Platform, including claims related to infringement of a third party’s patent, copyright, trademark or other Intellectual Property Right; and (c) Dealer Customer Data or other or content related to Dealer Customer’s which Dealer Customers provide, make available, upload, or input into the Dealer Website. For any claims under this Section 8.1, Dealer will obtain OperateBeyond’s written consent prior to (i) selecting and retaining counsel to defend against any claim under this Section 8.1 and (ii) agreeing to any settlement. OperateBeyond may also assume control of the defense and settlement of any claim subject to this Section 8.1 at any time.
8.2 By OperateBeyond. OperateBeyond will defend, indemnify, and hold harmless Dealer from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim that alleges that the Services infringe, misappropriate, or violates any United States patent, United States trademark or United States copyright or trade secret. Further, should the Services become, or in OperateBeyond’s opinion be likely to become, the subject of a claim of infringement or misappropriation, OperateBeyond will, at its election and expense, (1) obtain for Dealer the right to continue using the Services, pursuant to the terms and conditions of this Agreement, or (2) replace or modify the Services to become non-infringing or non-misappropriating but functionally equivalent. If neither (1) nor (2) is commercially feasible, OperateBeyond may terminate this Agreement. OperateBeyond’s indemnity obligations under this Section 8.2 do not apply to any claim resulting from: (w) Dealer or any Authorized User acts or omissions; (x) use not in accordance with this Agreement; (y) modifications, damage, misuse or other action of Dealer or any third party; or (z) any failure of Dealer to comply with this Agreement.
Section 9. Ownership
9.1 The OperateBeyond Platform and Results. As between OperateBeyond and Dealer, OperateBeyond owns all right, title, and interest in and to the OperateBeyond Platform, Services and Results, together with all Intellectual Property Rights therein or thereto. Except as otherwise specified in Section 4.1 of this Agreement, Dealer does not obtain any rights under this Agreement from OperateBeyond to the OperateBeyond Platform or Results, including any related Intellectual Property Rights.
9.2 Feedback. Dealer and Authorized Users may voluntarily provide OperateBeyond with Feedback and may make Authorized Users available to OperateBeyond on a reasonable basis for this purpose. Dealer will not, and will ensure Authorized Users do not, provide any such Feedback to any third party without OperateBeyond’s prior written consent in each instance. Any Feedback Dealer or Authorized Users provide to OperateBeyond may or may not be treated confidentially by OperateBeyond, and will become the sole property of OperateBeyond. OperateBeyond will own, and Dealer and Authorized Users hereby assign, all exclusive rights, including, without limitation, all Intellectual Property Rights, in and to Feedback and OperateBeyond will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Dealer or any Authorized Users.
9.3 Trademarks. As between OperateBeyond and Dealer, OperateBeyond owns all right, title and interest in and to the OperateBeyond Marks and any goodwill arising out of the use of the OperateBeyond Marks will remain with and belong to OperateBeyond and its licensors. The OperateBeyond Marks may not be copied, imitated or used without the prior written consent of OperateBeyond or the applicable trademark holder.
9.4 Dealer Data.
(a) In connection with the Services, OperateBeyond will collect and process Dealer Data. OperateBeyond is the Controller with respect to any Dealer Personal Information and will process Dealer Personal Information as described in OperateBeyond’s Privacy Policy [link]. Notwithstanding the foregoing, Dealer will own all Dealer Data and agrees that OperateBeyond may use Dealer Data for its business purpose to provide services to and communicate with Authorized Users about their Accounts and OperateBeyond products and services and as otherwise described in the OperateBeyond Privacy Policy (the “Purpose”). As between OperateBeyond and Dealer, Dealer retains all right, title and interest in and to any Dealer Data. Except as provided in this Section 9, OperateBeyond obtains no rights under this Agreement from Dealer to the Dealer Data, including any related Intellectual Property Rights.
(b) OperateBeyond may: (i) disclose Dealer Personal Data to its service providers and where required by applicable law court order and as otherwise disclosed in the OperateBeyond Privacy Policy; (ii) use and/or disclose aggregated or de-identified Dealer Personal Data to third parties or in any manner not prohibited by Applicable Privacy Law; and (iii) store Dealer Personal Data in the United States and other countries.
(c) Dealer hereby grants to OperateBeyond a perpetual, irrevocable, nonexclusive license to collect, use, store, maintain, and make Dealer Data available to third parties:
(d)By using or distributing access to the OperateBeyond Platform, Dealer consents, on behalf of Dealer and Authorized Users (as applicable), to have Dealer Data (including personal information) transferred to and processed in the United States or any other country in which OperateBeyond operates, where Dealer or Authorized Users may have fewer rights than under local law.
9.5 Dealer Customer Data.
(a) Dealer is the Controller and OperateBeyond is a Service Provider with respect to Dealer Customer Personal Information contained in Dealer Customer Data. Dealer shall comply with all Applicable Privacy Laws with respect to the collection, disclosure, and transfer of Dealer Customer Personal Information provided or made available to OperateBeyond, and any other processing of Personal Information Dealer requests from OperateBeyond. For the avoidance of doubt, (i) Dealer represents and warrants that it has all necessary rights and permissions to provide OperateBeyond the Dealer Customer Personal Information for Dealer to use and process in providing Services in accordance with this Agreement, (ii) Dealer’s instructions to OperateBeyond for the processing of Dealer Customer Personal Information shall at all times comply with Applicable Privacy Laws, (iii) Dealer is solely responsible for directly providing appropriate notice, including relevant privacy policies, and required opt-outs to, and obtaining appropriate consents where applicable, from Dealer Customers regarding the processing of Personal Information, and as required by Applicable Privacy Laws, and (iv) Dealer will not provide or make available to OperateBeyond Personal Information from Dealer Customers that is deemed “sensitive” or “special” under Applicable Privacy Laws, unless Dealer notifies OperateBeyond and the parties specifically agree to such processing.
(b) OperateBeyond shall only process Dealer Customer Personal Information on documented instructions from Dealer, and solely to fulfill the business purpose of providing services on behalf of Dealer, including maintaining or servicing Dealer Customer accounts, providing customer service, facilitating orders and transactions, providing advertising or marketing services, analytic services, and/or hosting or storage services.
(c) Except as expressly permitted by Applicable Privacy Laws, OperateBeyond is strictly prohibited from retaining, using, and/or disclosing, or otherwise processing Dealer Customer Personal Information (i) for any reason or purpose other than those specified in this Agreement; (ii) for any commercial purpose other than the specific business purposes specified 9.5(a) of this Agreement, including to provide services to a different business; and (iii) outside the direct business relationship between Dealer and OperateBeyond, including to combine or update Dealer Customer Personal Information with information received from or on behalf of another source or collected from OperateBeyond’s own interactions with a Dealer Customer.
(d) OperateBeyond will not use and/or disclose Dealer Customer Personal Information in any way that could be construed as a “sale” or “sharing” of Personal Information under Applicable Privacy Laws.
(e) OperateBeyond will only engage subcontractors who agree to be bound by the same or substantially similar provisions relating to handling of Dealer Customer Personal Information that are set forth in this Agreement.
(f) OperateBeyond will retain Dealer Customer Personal Information as directed by Dealer, or as required by applicable laws. At the termination of the Agreement, or upon Dealer’s written request, OperateBeyond will either destroy or return the Dealer Customer Personal Information to Dealer unless legal obligations require storage of Personal Information.
(g) OperateBeyond will treat all Dealer Customer Personal Information as strictly confidential and will not disclose it to third parties except as permitted by this Agreement.
(h) OperateBeyond will ensure that all personnel who process Dealer Customer Personal Information have undergone data protection training and are bound by obligations of confidentiality.
(i) OperateBeyond, at Dealer’s request, will update, correct, delete, supplement, transfer, and provide Dealer access to Dealer Customer Personal Information in OperateBeyond’s possession or control.
(j) OperateBeyond will cooperate with and assist Dealer in complying with Applicable Privacy Laws, including but not limited to assisting with data protection impact assessments, audits, and consultations with regulatory bodies.
(k) OperateBeyond may use, disclose, and process any de-identified Dealer Personal Information or Dealer Customer Personal Information in accordance with Applicable Privacy Laws and will, with respect to any de-identified data that it processes under the Agreement: (i) take reasonable measures to ensure that such data cannot be associated with an individual; (ii) process such data only in a de-identified fashion; (iii) not attempt to re-identify such data; (iv) contractually obligate any recipients of such data to comply with this section; and (v) publicly commit to complying with this section, such as through a prominent disclosure in its privacy policy, on its website, or similar means.
(l) OperateBeyond, upon receipt of a legally-binding request for access to Dealer Customer Personal Information from a public authority and where permitted by applicable law, will immediately notify Dealer of the request for access and provide details about the requesting party, the types of Dealer Customer Personal Information requested, and the purpose and methods of this disclosure (so as to provide Dealer the opportunity to comply with its notice and consent obligations with respect to affected Dealer Customers or oppose the disclosure and obtain a protective order or seek other relief).
Section 10. Limited Warranties and Remedies
10.1 OperateBeyond Warranties. OperateBeyond represents and warrants that:
(a) the OperateBeyond Platform and Services will perform and conform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation;
(b) it will provide the Services with commercially reasonable care and skill and in material compliance with applicable laws, and each of the personnel furnished to perform Services hereunder will have the proper skill and training so as to be able to perform Services to which he/she is assigned in the above referenced manner, and that OperateBeyond has sufficient number of personnel to provide all Services contemplated;
(c) OperateBeyond is the exclusive owner of the OperateBeyond Platform, or otherwise has the right to provide access to the same to Dealer, and that neither the Services nor Dealer’s access to or use of the same infringes, violates, or misappropriates the patent, copyright, trademark, trade secret, or other Intellectual Property Rights of any third party;
(d) there exists no agreement or restriction that would interfere with or prevent OperateBeyond from entering into this Agreement or rendering Services or providing the Subscription described herein.
10.2 Dealer Warranties. Dealer represents and warrants that:(i) there are no restrictions or limitations, contractual or statutory, which are likely to prevent or restrict Dealer from fulfilling its obligations under this Agreement; and (ii) Dealer Data and any other data or content inputted into the OperateBeyond Platform by Dealer does not infringe a third party’s patent, copyright, trademark or other Intellectual Property Right.
10.3 Remedy. Dealer must give OperateBeyond notice of a material defect or nonconformance within thirty (30) days from when Dealer becomes aware of such defect or nonconformance. OperateBeyond’s sole obligation with respect to a breach of the warranties in Section 10.1 will be to use commercially reasonable efforts to correct any nonconformance of the OperateBeyond Platform or Services.
10.3 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 10.1: (A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEALER WEBSITE, THE SERVICES AND RESULTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND DEALER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ANY SERVICES OR RESULTS INCLUDING ANY WARRANTY THAT ANY SERVICES OR RESULTS WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS, DEALER DATA, OR DEALER CUSTOMER DATA PROVIDED OR MADE AVAILABLE BY DEALER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (B) EXCEPT TO THE EXTENT PROHIBITED BY LAW, OperateBeyond AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Section 11. Limitations of Liability; Insurance
11.1 Force Majeure. Neither Party will be liable for, or be considered to be in, breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
11.2 Limitation of Liability. IN NO EVENT SHALL ANY OF THE OperateBeyond PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DEALER DATA OR DEALER CUSTOMER DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE OperateBeyond PLATFORM OR RESULTS OR THE DEALER WEBSITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, OR THE PERFORMANCE OF SERVICES EXCEPT FOR: (A) A PARTY’S VIOLATION OF SECTION 6 (FEES, PAYMENTS, AND TAXES) OF THIS AGREEMENT; (B) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (C) A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE REPLY PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE GREATER OF: (1) THE COMPENSATION PAID BY DEALER, IF ANY, TO OperateBeyond FOR SUCH REPLY SERVICE FOR THE THIRTY (30) DAYS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY; OR (2) $250,000.
11.3 Insurance. All insurance policies must be issued by insurance carriers that are currently rated by Best Rating Services as A‐/VII or better and licensed to conduct business in the state that the property or project is located.Each Party will obtain and maintain such insurance policies as may be required by applicable law, and will require their agents, representatives and subcontractors to maintain, insurance coverage (which may be in the form of single primary policies or a combination of primary policies and umbrella and/or excess policies) as follows: (i) Commercial General Liability written on an occurrence form, including personal and advertising injury with limits of $2,000,000 per occurrence, $10,000,000 general aggregate, and $2,000,000 Products/Completed Operations and/or Professional Liability if applicable; (ii) Automobile Liability with a combined single limit of $10,000,000; (iii) Workers Compensation Insurance or similar local scheme: Statutory Limits requirements of the state(s) or country in which service is to be performed; (iv) Employers’ Liability with a limit of $100,000 per accident, $1,000,000 policy limit, and $100,000 per employee; (v) Motor Truck Cargo Coverage with limits of $100,000 minimum each occurrence; (vi) Contingent Motor Truck Cargo Coverage for trucking/freight brokers of $100,000 minimum each occurrence; and (vii) Warehouse Legal Liability or Property of Others Coverage with limits of $100,000 minimum per occurrence. Dealer agrees to list OperateBeyond as an additional insured.
Section 12. Confidential Information
Each Party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 12 will not be interpreted or construed to prohibit any use or disclosure of information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) that is independently developed by the Recipient; (c) that is acquired by the Recipient from another source without restriction as to use or disclosure; (d) that is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (e) that is required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (f) that is made with the written consent of the Discloser. OperateBeyond will not share any such strategy or business Confidential Information of Dealer with any of its affiliates or third parties, or otherwise use such Confidential Information for the purpose of competing with Dealer’s products. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 13. Miscellaneous
13.1 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
13.2 Reference Program. Dealer may voluntarily consult with OperateBeyond and work in good faith to agree on quotes and statements about Dealer’s experience with the OperateBeyond Platform and Services. If Dealer or an Authorized User volunteers such quotes or statements, OperateBeyond may, at its option, use such quotes and statements in connection with its sales and marketing activities.
13.3 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to this Agreement.
13.4 Assignment. Dealer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of OperateBeyond. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
13.5 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
13.6 Alternative Dispute; Governing Law and Venue. Any dispute or disagreement between the Parties arising out of or in connection with this Agreement that is not settled by key personnel of each Party to the mutual satisfaction of the Parties within thirty (30) days (or such longer period as may be mutually agreed upon) from the date that either Party informs the other in writing that such dispute or disagreement exists shall then be mediated within sixty (60) days (or such longer period as may be mutually agreed upon) at a mutually agreeable location in accordance with the American Arbitration Association Rules and Procedures for commercial disputes with each Party sharing the cost of the mediator. If mediation is unsuccessful, the Parties may proceed to litigation, but each Party irrevocably waives their right to trial by jury. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Texas (without regard to the principles of conflicts of law). The Parties agree that venue for any dispute arising out of this Agreement shall lie in the state or federal courts serving Dallas County, Texas.
13.7 Severability. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
13.8 Entire Agreement. This Agreement, together with any agreement, Order, Services Order, or other policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
