Data Transfer Terms
These data-transfer terms (the “Data Transfer Terms”) are part of the Autosoft Terms of Service, which can be found at www.autosoftdms.com/termsandconditions/. All terms not defined herein have the meaning ascribed to them in the Terms of Service.
“Authorization” means any instruction, communication, or authorization manifesting Customer’s intent to share Dealership Data with a Connected Vendor, including but not limited to a Data Transfer Authorization Form.
“Authorized Vendor” is any Connected Vendor for which Customer has granted Authorization to Transfer Dealership Data.
“Connected Vendor” is any third-party that is currently a party to a data connection agreement (a “Data Connection Agreement”) with Autosoft pursuant to which Autosoft provides an opportunity to connect to Dealership Data under Autosoft’s Connect Program.
“Data Transfer Authorization Form” means the data transfer authorization form found at [l]
“Data Type” means the data types currently covered by the Data Connection Agreement of the Connected Vendor designated in the Authorization.
“Dealership Data” means the Data Types specified in an Authorization.
“Transfer” means the release, transfer, or provision of access to data.
2. Scope of Data Transfer Terms.
All Transfer of Dealership Data to Authorized Vendors is subject to and governed by these Data Transfer Terms and the Terms of Service. Autosoft has no obligation to transfer dealership data to any vendor that does not have a current Data Connection Agreement with Autosoft covering the data types designated by Customer for transfer.
3. Data Connection Agreement between Autosoft and Vendor.
Customer acknowledges that: (a) Data Connection Agreements are between Autosoft and Connected Vendors; (b) Customer is neither a party to nor a third-party beneficiary of any Data Connection Agreement; (c) no Data Connection Agreement confers any rights or remedies on Customer; (d) any Data Connection Agreement may be terminated without prior notice to Customer; and (e) if a vendor defaults under, or terminates, a Data Connection Agreement it will no longer be eligible to receive Dealership Data.
4. Data Type and Transfer.
Customer acknowledges that: (a) only Data Types currently covered by a Connected Vendor’s Data Connection Agreement are eligible for Transfer to that Connected Vendor; and (b) Transfer is limited to the electronic method(s) of transmission covered by the Connected Vendor’s Data Connection Agreement (e.g. FTP and/or certified API).
5. Data Transfer Termination by Vendor.
Customer acknowledges that: (a) an Authorized Vendormay decline to receive any or all of the Dealership Data, or any portions thereof;and (b) an Authorized Vendor may instruct Autosoft to terminate transmission of Dealership Data to the Authorized Vendor. If an Authorized Vendor’s Data Connection Agreement is terminated or if an Authorized Vendor instructs Autosoft to terminate the Transfer of Dealership Data from Customer to said Authorized Vendor (each a “Vendor Transfer Termination”), Autosoft shall make commercially reasonable efforts to provide Customer with notice of the Vendor Transfer Termination.
6. Internet Connection.
Customer is responsible, at Customer’s expense, for providing internet access to the device on which the Software is installed (“Internet Connection”). Customer acknowledges that the Transfer of Dealership Data is not possible without a properly functioning Internet Connection. Autosoft is not responsible for verifying or ensuring that an Authorized Vendor’s systems are able to properly and securely receive, store or use the Dealership Data. Customer acknowledges, that if an Authorized Vendor’s systems are not properly configured to receive Dealership Data, the Authorized Vendor may fail to receive Dealership Data.
7. Customer’s Data Disclosure Terms.
As between Customer and Autosoft, Customer is solely responsible for: (i) specifying, memorializing, and enforcing the terms under which Customer permits an Authorized Vendor to maintain, use, transmit, and disclose Dealership Data (“Customer’s Data Disclosure Terms”). Autosoft is not Customer’s agent or representative in connection with any Authorized Vendor and is not obligated to communicate Customer’s Data Disclosure Terms to any Authorized Vendor.
8. Customer acknowledges and agrees that: (a) Customer’s Data Disclosure Terms (if any) areconcluded between Customer and Authorized Vendor only, and not with Autosoft; (b) Autosoft is not obligated to monitor Authorized Vendor’s compliance or Customer’s compliance with Customer’s Data Disclosure Terms (if any); (c) Autosoft is not obligated to take any measures to enforce Customer’s Data Disclosure Terms; and (d) Autosoft shall have no liability for any breach of Customer’s Data Disclosure Terms by an Authorized Vendor, even if Autosoft has knowledge of such breach.
9. Customer acknowledges that the Software does not currently have features or functionalities that monitor any Authorized Vendor’s compliance with the Customer’s Data Disclosure Terms (if any) between Customer and any Authorized Vendor.
10. Autosoft is not obligated to (i) monitor any Authorized Vendor’s use or disclosure of Dealership Data or (ii) report to Customer any use or disclosure by any Authorized Vendor of Dealership Data.
11. Data Transfer Termination by Customer.
Customer may cease transferring Dealership Data to an Authorized Vendor by providing Autosoft with written notice thereof. Upon receipt of said notice, Autosoft will use commercially reasonable efforts to terminate the transfer of Dealership Data to the Authorized Vendor within a commercially reasonable period of time following Autosoft’s receipt of such notice. Customer acknowledges that although Customer may cease transmitting Dealership Data to an Authorized Vendor, the Authorized Vendor may have made back-ups or other copies of Dealership Data received prior to the termination and that those copies will not be retrievable by or accessible to Customer through the Autosoft Software.
12. Third Party Permissions.
Customer acknowledges that Dealership Data may be subject to disclosure or use restrictions imposed by third parties that may hold rights in the Dealership Data (“Third Parties”). As between the parties, Customer is solely responsible, at its own expense, for obtaining all necessary rights, licenses and permissions from Third Parties (if any) to disclose the Dealership Data to Authorized Vendors (“Permissions”). Customer is solely responsible for complying with all applicable Permissions. Autosoft has no obligation to monitor Customer’s compliance or Authorized Vendor’s compliance with Permissions (if any). Autosoft shall have no liability for any breach of Permissions, even if Autosoft has knowledge of such breach.
13. Customer is solely responsible, at its own expense, for determining the applicability of state and federal privacy laws and regulations with respect to Customer’s activities, including Customer’s disclosure and transmission of Dealership Data to Authorized Vendors. Without limiting the generality of the foregoing, Autosoft has no obligation to obtain satisfactory assurance from any Authorized Vendor that any Authorized Vendor will appropriately safeguard the Dealership Data.
14. Customer acknowledges that: (i) Terms of Service between Customer and Autosoft are not applicable to any Dealership Data within an Authorized Vendor’s possession; and (ii) the terms and conditions of a Data Connection Agreement may be applicable to Dealership Data within Authorized Vendor’s possession. Autosoft has no obligation to: (i) disclose to Customer the terms of any Data Connection Agreement with an Authorized Vendor; (ii) modify or amend any Data Connection Agreement in connection with the Transfer of any Dealership Data; or (iii) enter into any additional Data Connection Agreement in connection with the Transfer of any Dealership Data.
15. Customer acknowledges and agrees that, for purposes of the Terms of Service and these Data Transfer Terms, no Authorized Vendor shall be deemed to be an agent or sub-contractor of Autosoft in connection with Dealership Data. Autosoft has no obligation under the Terms of Service, these Data Transfer Terms, any Data Connection Agreement, or otherwise, to ensure that any Authorized Vendor receives, maintains, uses, or transmits Dealership Data in compliance with the restrictions and conditions of the Terms of Service, the Customer’s Data Disclosure Terms, any other agreement, or in accordance with any law or regulation applicable to Authorized Dealer.
16. Autosoft is not responsible for addressing any claims by Customer or any third party relating to the use or disclosure of Dealership Data by any Authorized Vendor, including, but not limited to: (a) anyclaim that an Authorized Vendor has violated any agreement between Authorized Vendor and Customer; (b) any claim that an Authorized Vendor’s use or disclosure of the Dealership Data fails to conform to any applicable legal, regulatory, or contractual requirement; and (c) any claim that an Authorized Vendor has violated data privacy laws, intellectual property law, or similar legislation.
17. WARRANTY DISCLAIMER.
THE DEALERSHIP DATA IS TRANSFERRED TO AUTHORIZED VENDORS “AS IS” AND AUTOSOFT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE DEALERSHIP DATA, ITS CONTENT OR ITS ACCURACY, ITS TRANSFER, OR THE RESULTS TO BE OBTAINED FROM ITS USE, AND DOES NOT WARRANT THAT DEALERSHIP DATA OR ITS TRANSFER WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY AUTOSOFT.
18. LIMITATION OF LIABILITY.
IN NO EVENT SHALL AUTOSOFT’S AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THE TRANSFER OF DEALERSHIP DATA EXCEED THE AMOUNT PAID BY CUSTOMER TO AUTOSOFT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE OF THE OCCURENCE GIVING RISE TO SUCH LIABILITY (“AGGREGATE LIMIT”). THE AGGREGATE LIMIT IS THE MOST THAT AUTOSOFT IS OBLIGATED TO PAY FOR ALL LIABILITY IN CONNECTION WITH THE TRANSFER OF DEALERHIP DATA, REGARDLESS OF THE NUMBER OF OCCURENCES, CLAIMS, OR CLAIMANTS.
19. In the event of any claim that an Authorized Vendor’s possession, disclosure, or use of Dealership Data infringes any law or any third party’s intellectual property or privacy rights, Customer acknowledges and agrees that Autosoft has no responsibility for the investigation, defense, settlement, or discharge of any such claims. Customer shall defend, indemnify, and hold harmless Autosoft and Autosoft’s officers, directors, employees, and agents (“Indemnitees”) from and against any claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys’ fees) threatened, asserted, or filed by a third party (including any governmental or regulatory entity) against any Indemnitee arising out of or relating to Customer’s disclosure of Dealership Data to any Authorized Vendor.
20. These Data Transfer Terms supersede any and all previous communications, whether oral or written, as well as any previous memoranda and letters between the parties with respect to the Transfer of Dealership Data to Authorized Vendors.