END USER LICENSE AGREEMENT
The customer entering the Digital Dealer Control Centre Dashboard through this website ("Customer
") agrees that Customer’s use of any products or services (the "Service
" or "Services
") offered by Phase New Media ("Phase
") will be subject to these standard terms and conditions (this "Agreement
1. Agreement and Services.
This Agreement governs the Customer's use of all Services ordered from Phase by the Customer from time to time. These Services will be identified on invoices (each, an "Invoice
") issued to the Customer. Subject to the Customer’s payment of any applicable Fees (as defined below), Phase will provide to the Customer the Services identified in each Invoice. As further specified in the applicable Invoice, the Services may consist of professional services, such as, but not limited to, website development and hosting services, and/or access to online products and services (including any hardware or equipment provided by Phase) that Phase may make available to its customers from time to time via this website or any other digital platform (collectively, the "Phase/Digital Dealer Site
2. Access to Phase/Digital Dealer Online Services.
2.1. Grant of Rights.
Subject to the Customer's compliance with the terms of this Agreement, including, without limitation, the restrictions set forth in Section 2.2 below, Phase grants to the Customer and its Authorised Users a non-exclusive, non-transferable, limited license, during the Term of this Agreement, to access and use the Services on and through the Digital Dealer Site, solely for the purpose of enhancing, managing, distributing, and displaying data and photos relating to vehicles the Customer has in inventory or may acquire (collectively, "Inventory Data
") via the Internet. The Customer shall be responsible for compliance with, and any breach of, this Agreement by the Customer's Authorised Users. For purposes of this Agreement, "Authorised Users
" means (a) Customer's employees, officers, directors and/or contractors who access any Services on behalf of the Customer, and (b) if the Customer obtains website development and/or hosting services from Phase, the end users of Customer's website(s).
2.2. Restrictions on Use.
The Customer acknowledges and agrees that the Services are licensed for use at a single dealer location, and the Customer shall not use the Services for more than one dealer location or rooftop unless the Customer enters into a separate agreement with Phase. Notwithstanding anything to the contrary in this Agreement, Customer may not (i) provide, disclose, make available or allow access to, or permit use of any Service by any third party; (ii) modify, adapt, translate, or create derivative works based upon, the underlying software code of any Service; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Service except to the extent the Customer may be expressly permitted to do so under applicable law; or (iv) use any Service to provide services to a third party.
3. Data Rights.
3.1. Inventory Data.
The Customer acknowledges that certain Services will require Phase, its Affiliates (as defined in Section 9.1, below) and/or its service providers to access, store and manage the Customer's Inventory Data. If the Customer requests any such Service, the Customer agrees that Phase, its Affiliates and/or such service providers may receive data from the Customer's dealer management system for purposes of acquiring Inventory Data for use for their respective business purposes, which may include, without limitation, performing Data Sanitation, distributing Inventory Data, and preparing and distributing statistical analyses based on the Inventory Data. The Customer alone is responsible for ensuring the accuracy and integrity of the Inventory Data. The Customer must notify Phase immediately of any problems with the Services or any errors in the Inventory Data.
3.2. Performance/Transaction Data.
The Customer may use the Services to manage leads, transactions, and other customer interactions in connection with the operation of its dealerships and to assess and enhance the performance of its marketing efforts (collectively, this data is referred to as the "Performance/Transaction Data
"). The Customer hereby grants to Phase and its Affiliates a perpetual, non-exclusive, royalty-free, irrevocable right and license (i) to use, copy, perform, display, distribute and modify the Performance/Transaction Data in any manner or medium, now known or hereafter developed, for Phase and its Affiliates' business purposes, and (ii) to prepare statistical analyses based on such Performance/Transaction Data ("Statistical Data
"), which Phase and its Affiliates may use to improve their services and may combine with other similar data from other customers and disseminate and otherwise use in aggregate form.
3.3. Proprietary Rights in Customer Data.
Subject to the licenses granted pursuant to Sections 3.1 and 3.2, above, as between the Customer and Phase, the Customer will own and retain all right, title and interest in and to all Inventory Data and Performance/Transaction Data (collectively, "Customer Data") provided or made available to Phase, or otherwise collected or received by Phase, in connection with Customer's use of the Services.
4. Term; Termination.
The term of this Agreement will commence as of the date on which Customer assents to this Agreement by signing in/logging in on the Digital Dealer Site and will remain in effect unless and until terminated as set forth below ("Term
4.2. Termination for Cause.
Phase may terminate this Agreement and/or cancel any Service(s) ordered under an Invoice at any time in the event of a material breach by the Customer that remains uncured for a period of thirty (30) days following Customer's receipt of written notice of such breach from Phase. The Customer may terminate this Agreement at any time in the event of a material breach of the terms of this Agreement by Phase that remains uncured for a period of thirty (30) days following Phase receipt of written notice of such breach from Customer.
4.3. Termination for Convenience.
Without limiting Section 4.2, above, either party may terminate this Agreement and/or cancel any Service(s) at any time, with or without cause, upon thirty (30) days' prior written notice to the other party. For avoidance of doubt, the cancellation of any Service will not terminate this Agreement nor cancel any other Service unless expressly stated in the applicable notice of termination or cancellation.
4.4. Effects of Termination.
Upon expiration or termination of this Agreement or any Order Schedule, (i) the Customer's right to use the Services will immediately terminate, and (ii) all unpaid Fees outstanding from Customer will become immediately due and payable. Sections 2.2, 3, 4.4, 6, 7, 8, 9, 10, 11, 12 and 14 will survive any termination of this Agreement.
5. Fees; Payment.
The Customer will pay Phase the fees specified in each Invoice ("Fees
"). Payments are due monthly. All amounts paid by Customer pursuant to this Agreement are non-refundable. Late payments may bear interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, if lower. If Customer fails to make payment when due, the Customer will be responsible for all reasonable expenses (including solicitors’ fees) incurred by Phase in collecting such amounts. The Customer will be responsible for and will pay all taxes that are imposed on the Fees paid or Services provided hereunder. If the Customer cancels any Service that was priced by Phase as part of a bundle of Services, but does not cancel all of such Services, Phase may adjust the Fees for the remaining Services. By accessing and/or using any Service after such adjustment, the Customer agrees to pay the adjusted Fees for such Service.
5.2. Overage Charges.
In addition to regular monthly service Fees, the Customer may be subject to overcharge charges in connection with usage of Customer's text messaging, or call monitoring plans in connection with the Customer's use of the Services under this Agreement. If the Customer purchases one of these Services, the monthly usage limits will be set by the product package in effect at the time of purchase. If the Customer exceeds the set limit of the product package, the Customer will automatically be enrolled in the next highest product package for the month in which the overage occurs. All fees associated with the next highest product package will be applied as overage fees for that particular month and the Customer will be obligated to pay such amount. Overage charges will be applied on a month-to-month basis and will not automatically enroll the Customer in any level of product package beyond the month in which the overage charges were incurred. By purchasing any product package with a set limit of monthly usage, the Customer consents to being temporarily enrolled in the next highest product package in order to pay for any overage charges that occur for any given month.
6. Representations and Warranties.
6.1. Customer Warranties.
The Customer represents and warrants that (i) it is a legal entity duly organised, validly existing and in good standing; (ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (iii) it has all rights necessary to provide the Customer Data and any other materials (including any trademarks, service marks, logos, photographs, images, graphics, audio, video, or other creative materials (collectively, "Customer Materials
")) provided or made available by the Customer, and that such Customer Data and Customer Materials do not and will not infringe any rights of any third party, including, but not limited to, any contractual rights, copyright, trademark or trade secret rights or any right of privacy or publicity, (iv) the Customer's use of the Services will comply with all applicable laws, rules and regulations, including, without limitation, any privacy laws; and (v) to the extent the Customer purchases website hosting services from Phase, the Customer will provide Phase with a written privacy statement to post on such website that complies with applicable law and that contains any terms that Phase may, from time to time, provide to the Customer for inclusion in such privacy statement.
PHASE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED "AS IS
" AND "WITH ALL FAULTS
" AND PHASE MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE.
Customer will indemnify, defend and hold harmless Phase, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any and all claims, losses, demands, causes of action, debts or liabilities, including reasonable solicitors' fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of the Customer's obligations, representations or warranties under this Agreement, (ii) the Customer's use of the Services, or (iii) any claim that any Customer trademarks, service marks, trade names, logos or other content or materials furnished by the Customer for use in connection with the Services, including, without limitation, any Customer Data and any Customer Materials (including, if the Customer obtains any website development and hosting services from Phase, any content or advertising posted on such website by the Customer's end users), but excluding any content provided by Phase, (a) misappropriates any third party's confidential information, (b) violates any applicable law, rule or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.
8. Limitation of Liability.
USE OF THE SERVICES AND ANY RELIANCE BY THE CUSTOMER UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PHASE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW PHASE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
The Customer’s sole and exclusive remedy for any failure or non performance of the Services shall be for Phase to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment or repair is not feasible, for Phase to either (at its discretion) perform the Services again or provide you with a refund for the amount you actually paid to Phase for the relevant Services but for no greater than one (1) month’s equivalent Services rendered.
The Customer acknowledges that websites and other digital marketing productions cannot be guaranteed to be 100% error free in construction and/or 100% secure, and acknowledges that the existence of errors falling short of a complete failure of consideration in the site shall not constitute a reason to terminate this agreement.
LIMITATION OF LIABLIITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL PHASE OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR FAILURE TO REALISE ANTICIPATED SAVINGS OR BENEFITS OR BUSINESS OPPORTUNITIES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
PHASE EXCLUSION OF LIABILITY APPLIES WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR EQUITY AND EVEN IF PHASE HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
THE CUSTOMER AGREES THAT PHASE LIABILITY TO THE CUSTOMER AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE LOSS.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, PHASE IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), TO THE FULLEST EXTENT PERMITTED BY LAW THE LIABILITY OF PHASE TO YOU WILL BE LIMITED TO:
(A) IN THE CASE OF GOODS, NIL; AND
(B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES.
9. Proprietary Rights.
9.1. Rights in Phase Online Services.
The Services constitute the intellectual property of and are owned by Phase, its Affiliates and/or its licensors, and Phase, its Affiliates and/or its or their licensors retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Services. The structure, organisation and code of the Services are valuable trade secrets and Confidential Information of Phase, its Affiliates and/or its or their licensors. Any user name or password provided to or created by Customer for use in connection with the Services are Confidential Information of Phase and may not be shared with any third party without the prior written authorisation of Phase. Except as expressly stated herein, this Agreement does not grant the Customer any intellectual property rights in any Services and all rights not expressly granted are expressly reserved by Phase, its Affiliates and/or its or their licensors. The Customer may not remove or authorise or permit its Authorised Users to remove or obscure any proprietary rights legends from the Services. Without limiting the generality of the foregoing, if the Customer obtains website development and hosting services from Phase, the Customer acknowledges that Phase owns all right, title, and interest in the code underlying any website it provides and in the design of such site, including any templates used in connection with such design ("Templates
"). The Customer is receiving only hosting services from Phase with regard to the operation and display of such website solely during the Term and will not obtain any intellectual property rights from Phase in connection with the operation and display of such website. The Customer acknowledges that use of the Template is not exclusive to Customer, and that Phase may operate websites for other customers using the same Templates. For purposes of this Agreement, "Affiliate
" means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, Phase, where "control
" means the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.
Phase, its Affiliates and/or its or their licensors own and retain all rights in any trademarks, service marks, trade names and logos, and all related products and service names, marks, and slogans used by Phase in connection with the Services. Any other trademarks, service marks, trade names or logos contained within any Services are owned by their respective owners.
10.1. Definition of Confidential Information.
For purposes of this Agreement, "Confidential Information
" means the terms and conditions of this Agreement, and all non-public information about Phase business or activities that is marked or designated by Phase as "confidential
" or "proprietary
" at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation all Phase business (including pricing), financial, technical and other similar information.
10.2. Use of Confidential Information.
The Customer agrees that during the Agreement Term and for three (3) years thereafter: (i) it will not disclose to any third party any Confidential Information disclosed to it by Phase except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by Phase except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of Phase in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, the Customer may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; and (b) on a "need-to-know
" basis to its legal counsel, accountants, employees and agents who are obligated to maintain the confidentiality of such information. The Customer agrees that it shall remain liable for the compliance by such persons with the terms of this Agreement. Upon termination or expiration of this Agreement, or at the request of Phase, the Customer shall (at its option) return the Confidential Information to Phase, or destroy it and, upon Phase request, certify that it has taken such action.
Except as otherwise provided herein, any notice provided pursuant to this Agreement will be in writing, and will be sent by Australia Post, postage prepaid, certified mail return receipt requested or by overnight courier addressed (if to the Customer) to the address set forth on the Subscription Form or (if to Phase) to Phase New Media, Pty Ltd., Attn: General Manager, Level 3, 41 Sherwood Road, Toowong Queensland 4066 to such other address as maybe provided by notice by the applicable party in accordance with this Section. Notices will be effective upon receipt.
12. Governing Law/Venue.
This Agreement and performance hereunder will be governed by the laws of the State of Queensland, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in Brisbane, Queensland.
The Customer may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights is void. Phase may subcontract to any third party all or any part of the Services being provided by Phase to the Customer pursuant to this Agreement.
14. Changes to Agreement.
Phase reserves the right to modify the terms of this Agreement from time to time and will post any such changes on the Phase New Media/Digital Dealer Sites. Phase will provide notice to the Customer of any such modification, which notice may appear on the Phase/Digital Dealer Sites or be delivered via the Services. The Customer agrees that the Customer's use of any Services after notice of such modifications to this Agreement will constitute the Customer's assent to any such modifications.
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party. Nothing in this Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter, including, without limitation, the terms of any purchase order submitted by the Customer to Phase to procure Services hereunder. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. Except as otherwise set forth in Section 14, this Agreement may not be modified or altered except by written instrument duly executed by an authorised officer of each party, and any such other modification shall be null and void and of no legal effect. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.
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