SCOPE OF SERVICES. Digital Recognition Network, Inc. (DRN) agrees to provide the Vehicle Data Services (VDS) to Customer, subject to the terms and conditions herein. This Agreement shall encompass any and all delivery methods provided to Customer for the Vehicle Data Services, including, but not limited to, online, batch, XML, assisted searching, machine-to-machine searches, transmission through Customer’s existing software systems of record and any other means which may become available.
RESTRICTED LICENSE. DRN (hereinafter Licensor) grants
(hereinafter “Licensee”) a restricted license to use the Vehicle Data Services (hereinafter “Services”) and any data contained therein (hereinafter “Licensed Data”), subject to the restrictions and limitations set forth below:
- Generally. Licensee is granted a restricted license to use Licensed Data for the purpose(s) listed on the approved application. Licensee’s use of Vehicle Data Services and Licensed Data shall only be for legitimate business purposes, including those specified by Licensee in connection with a specific information request, relating to its business and as otherwise governed by the Agreement.
- Licensee shall not use the Licensed Data for marketing purposes or for personal (non-business) purposes.
- Licensee shall not use the Licensed Data to provide data processing services to third-parties or evaluate data of or for third-parties.
- Licensee shall not rent, sell, license, assign or otherwise provide, dispose or disclose any information or data contained in the Licensed Data to any third party in any form for any reason whatsoever, without Licensor’s prior written consent.
- The Licensed Data shall not be used for direct mail marketing purposes nor for statistical reports.
- Licensee shall not access the Vehicle Data Services from Internet Protocol addresses located outside of the United States and its territories without Licensor’s prior written approval.
- Licensee may not use the Vehicle Data Services to create a competing product.
- Licensee shall comply with all laws, regulations and rules which govern the use of the Vehicle Data Services and information provided therein.
- Licensor may at any time mask or cease to provide Licensee access to any Vehicle Data Services or portions thereof which Licensor may deem, in Licensor’s sole discretion, to be sensitive or restricted information.
- Licensee agrees that, if Licensor determines or reasonably suspects that Licensee is engaging in marketing activities or processing or evaluating data of or for third-parties, or using the Licensed Data for personal (non-business) purposes or using the Licensed Data , Vehicle Data Services, programs, computer applications, or data, or is otherwise violating any provision of this Agreement, or any of the laws, regulations, or rules described herein, Licensor may take immediate action, including, without limitation, terminating the delivery of, and the license to use, the Vehicle Data Services.
Licensee may disclose to the lien holder, lender, or an authorized agent of the lien holder or lender Licensed Data concerning the purchased or leased vehicle. Licensee agrees that the Licensed Data shall only be used by Licensee and its authorized agents solely for their own internal business use, to recover the subject vehicle or the collection and recovery of a debt secured by the subject vehicle.
Licensee agrees to: (i) hold the Licensed Data in confidence; (ii) disclose the Licensed Data to employees and/or Licensee’s authorized agents to whom knowledge thereof is required for its proper use in accordance with this Agreement; (iii) cause such employees and/or Licensee’s authorized agents to hold the Licensed Data in confidence; and (iv) take reasonable steps to prevent the accidental or unauthorized disclosure of the Licensed Data. The obligations of Licensee under this Section shall survive termination of this Agreement.
Licensor agrees to: (i) hold all the data furnished by Licensee (hereinafter “Licensee’s Data”) in confidence and not release Licensee’s Data to any third party for any reason whatsoever without the express prior written consent of Licensee; (ii) disclose Licensee’s Data only to Licensor personnel to whom knowledge thereof is required for its proper use in accordance with this Agreement; and (iii) cause such Licensor personnel to hold Licensee’s Data in confidence.
Title to the Licensed Data shall at all times remain in Licensor, or original data licensor. The Licensed Data shall not be assigned, subleased, sublicensed, rented, offered for sale, sold or disposed of by Licensee in any manner whatsoever. The change of beneficial or record ownership of fifty (50) % or more of any class of Licensee’s capital structure, or the merger, consolidation or reorganization of Licensee shall be considered as constituting an improper assignment hereof.
GLBA Data. Although none of the information provided by or through Vehicle Data Services is “nonpublic personal information,” as defined in the Gramm-Leach-Bliley Act, (15 U.S.C. § 6801, et seq.) and related state laws (collectively, the “GLBA”), and which is regulated by the GLBA (“GLBA Data”), Licensor hereby restricts Licensee’s access and use of all Vehicle Data Services as if it was GLBA Data. Accordingly, Licensee shall not obtain and/or use Licensed Data accessed by or through the Vehicle Data Services in any manner that would violate the GLBA, or any similar state or local laws, regulations and rules. Licensee acknowledges and agrees that it may be required to certify its permissible use of GLBA Data falling within an exception set forth in the GLBA at the time it requests information in connection with certain Vehicle Data Services and will recertify upon request by Licensor. Licensee certifies with respect to Licensed Data received through the Vehicle Data Services that it complies with the Interagency Standards for Safeguarding Licensee Information issued pursuant to the GLBA.
DPPA Data. Although none of the information provided by or through Vehicle Data Services is “personal information,” as defined in the Drivers Privacy Protection Act, (18 U.S.C. § 2721 et seq.) and related state laws (collectively, the “DPPA”), and is regulated by the DPPA (“DPPA Data”), Licensor hereby restricts Licensee’s access and use of all Vehicle Data Services as if it was DPPA Data. Accordingly, Licensee shall not obtain and/or use Licensed Data by or through the Vehicle Data Services in any manner that would violate the DPPA. Licensee acknowledges and agrees that it may be required to certify its permissible use of Licensed Data at the time it requests information in connection with certain Vehicle Data Services and will recertify upon request by Licensor.
Copyrighted and Trademarked Materials. Neither Licensee nor shall Licensor remove or obscure any trademarks, copyright notices or other notices contained on materials accessed through the Vehicle Data Services.
Fair Credit Reporting Act. The Vehicle Data Services provided pursuant to this Agreement are not provided by “consumer reporting agencies,” as that term is defined in the Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.) (“FCRA”) and do not constitute “consumer reports,” as that term is defined in the FCRA. Accordingly, the Vehicle Data Services may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment or another purpose in connection with which a consumer report may be used under the FCRA. Further,
- Licensee certifies that it will not use any of the Licensed Data to determine, in whole or in part, an individual’s eligibility for any of the following products, services or transactions: (1) credit or insurance to be used primarily for personal, family or household purposes; (2) employment purposes; (3) a license or other benefit granted by a government agency; or (4) any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including without limitation, apartment rental, check-cashing, or the opening of a deposit or transaction account;
- by way of clarification, without limiting the foregoing, Licensee may use, except as otherwise prohibited or limited by this Agreement, Licensed Data for the following purposes: (1) to prevent or detect fraud or other unlawful activity; (2) to locate an individual vehicle for the purpose of lawful repossession; (3) to collect a debt, provided that such debt collection does not constitute in whole or in part, a determination of an individual consumer’s eligibility for credit or insurance to be used primarily for personal, family or household purposes; or
- specifically, if Licensee is using the Vehicle Data Services in connection with collection of a consumer debt on its own behalf, or on behalf of a third-party, Licensee shall not use the Vehicle Data Services: (1) to revoke consumer credit; (2) to accelerate, set or change repayment terms; or (3) for the purpose of determining a consumer’s eligibility for any repayment plan; provided, however, that Licensee may, consistent with the certification and limitations set forth in this section (vii), use the Vehicle Data Services for identifying, locating, or contacting a consumer in connection with the collection of a consumer’s debt or for prioritizing collection activities; and
- Licensee shall not use any of the information it receives through the Vehicle Data Services to take any “adverse action,” as that term is defined in the FCRA.
CONFIDENTIAL INFORMATION. “Confidential Information” means information or materials provided by one party (the “Disclosing Party”) to the other (the “Receiving Party”) which are in tangible form and labeled “confidential”, “proprietary” or the like, or, if disclosed orally, are identified as being confidential or proprietary at the time of disclosure. Notwithstanding the foregoing, Privacy Information shall be deemed to be Confidential Information of Licensee whether or not so marked or identified and any and all third party data provided by Licensee to Licensor shall be deemed to be the Confidential Information of Licensee whether or not so marked or identified. As between the Parties, the Disclosing Party shall be the owner of all right, title and interest in and to its Confidential Information. In connection with Confidential Information, the following shall apply:
The Receiving Party shall hold in confidence and shall not at any time (A) directly or indirectly reveal, report, publish, disclose or transfer Confidential Information or any part thereof to any third party except its employees, agents and contractors who have a need to know in the course of their performance of services on behalf of the Receiving Party and who are under an obligation of confidentiality to the Receiving Party at least as restrictive as set forth herein; (B) use any Confidential Information or any part thereof for any purpose other than for the benefit of the Disclosing Party for the purposes of this Agreement; or (C) assist any person or entity other than the Disclosing Party to secure any benefit from Confidential Information or any part thereof. Notwithstanding anything to the contrary herein, Licensor shall maintain the confidentiality of Privacy Information disclosed to it to the same extent as required of Licensee and may disclose such Privacy Information only as permitted by Privacy Law.
No information shall be considered as Confidential Information, regardless of its having been marked or otherwise defined as such, if (A) it is in the public domain at the time the Disclosing Party discloses it to the Receiving Party; (B) it enters the public domain subsequent to the time of the Disclosing Party’s disclosure to the Receiving Party and without any fault or disclosure on the part of the Receiving Party; (C) it was known to the Receiving Party free of any obligation of confidence prior to the disclosure by the Disclosing Party; (D) it is developed by employees or agents of the Receiving Party independently of and without reference to any of the Disclosing Party’s Confidential Information; (E) it was rightfully communicated by a third party to the Receiving Party free of any obligation of confidence; or (F) it is required to be disclosed by law, but then only to the extent of a court order requiring such disclosure, so long as the Disclosing Party is given adequate notice of and the ability to challenge such required disclosure prior to the disclosure.
“Privacy Information” means (i) any personally identifiable information that is capable of identifying a natural person, which may include but is not limited to: name, address, telephone number, e-mail address, social security number, driver’s license number; state-issued identification card number; or an account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to an individual’s financial account; or (ii) information, the disclosure, use or confidentiality of which is regulated by Privacy Law.
“Privacy Law” means any local, state and federal privacy law or regulation, including, but not limited to (A) Title V of the Gramm-Leach-Bliley Act of 1999, 15 U.S.C. § 6801, et. seq.; (B) Regulation P, “Privacy of Consumer Financial Information,” 12 C.F.R. Part 332; (C) “Interagency Guidelines for Establishing Standards for Safeguarding Licensee Information”, 12 C.F.R. Part 364, Appendix B; (D) Regulation S-P, “Privacy of Consumer Financial Information,” 17 C.F.R. Part 248; (E) FTC Standards for Safeguarding Consumer Information, 16 C.F.R. Part 314; and (F) 45 C.F.R. Parts 160 and 164 promulgated under the Health Insurance Portability and Accountability Act of 1996.
PERFORMANCE. Licensor will use commercially reasonable efforts to deliver the Vehicle Data Services requested by Licensee and to compile information gathered from selected sources used in the provision of the Vehicle Data Services; provided, however, that the Licensee accepts all information, including Vehicle Location Data, “AS IS”. Licensee acknowledges and agrees that Licensor obtains its data from third party sources, which may or may not be completely thorough and accurate, and that Licensee shall not rely on Licensor for the accuracy or completeness of information supplied through the Vehicle Data Services. Licensee understands that Licensee may be restricted from accessing certain Vehicle Data Services which may be otherwise available. Licensor reserves the right to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of the Vehicle Data Services.
INTELLECTUAL PROPERTY. Licensee acknowledges that DRN has expended substantial time, effort, and funds to create and deliver the Vehicle Data Services and compile its various databases. Licensee agrees that Licensee shall not reproduce, retransmit, republish, or otherwise transfer for any commercial purposes the Vehicle Data Services' information, VLD, programs or computer applications. Licensee acknowledges that Licensor shall retain all right, title, and interest under applicable contractual, copyright, patent, trademark, Trade Secret and related laws in and to the Vehicle Data Services, VLD and the data and information that they provide. Licensee shall use such materials in a manner consistent with Licensor’s interests and the terms and conditions herein, and shall notify Licensor of any threatened or actual infringement of Licensor’s rights. Nothing contained in this Agreement or in any schedule shall be deemed to convey to Licensee or to any other party any ownership interest in or to the intellectual property or data provided in connection with the Vehicle Data Services.
TERM OF AGREEMENT. This Agreement is for services rendered and shall be in full force and effect during such periods of time during which Licensor is providing services for Licensee (the “Term”).
TERMINATION. Except where a separate agreement otherwise sets forth Licensee's minimum commitment, either party may terminate this Agreement at any time for any reason.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without effect to conflicts of law principles. In consideration of the execution and delivery of this Agreement, the parties hereto stipulate and agree that each party will not assert, and specifically waives, the right to recovery of punitive damages as a result of any action or inaction by the other party, and that each party shall be entitled solely to actual damages as a consequence of any action or inaction by the other party. THE PARTIES HERETO HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT WHICH EITHER OR BOTH OF THEM SHALL HAVE TO RECEIVE A TRIAL BY JURY WITH RESPECT TO ANY CLAIMS, CONTROVERSIES OR DISPUTES WHICH SHALL ARISE OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.
ASSIGNMENT. Other than to its affiliated and subsidiary companies, the license granted pursuant to this Agreement to Licensee to use the Vehicle Data Services may not be assigned by Licensee, in whole or in part, without the prior written consent of Licensor. For purposes of this Agreement, a change in control of Licensee of twenty percent (20%) or more shall constitute an assignment.
WARRANTIES/LIMITATION OF LIABILITY. Neither Licensor, nor its subsidiaries and affiliates, nor any thirdparty data provider (for purposes of indemnification, warranties, and limitations on liability, Licensor, its subsidiaries and affiliates, and its data providers are hereby collectively referred to as “Licensor”) shall be liable to Licensee (or to any person claiming through Licensee to whom Licensee may have provided data from the Vehicle Data Services) for any loss or injury arising out of or caused in whole or in part by Licensor's acts or omissions in providing, procuring, compiling, or collecting Vehicle Data Services. Licensor does not make and hereby disclaims any warranty, express or implied, with respect to the Vehicle Data Services. Licensor does not guarantee or warrant the correctness, completeness, merchantability, or fitness for a particular purpose of the Vehicle Data Services or information provided therein. In no event shall Licensor be liable for any indirect, incidental, or consequential damages, however arising, incurred by Licensee from receipt or use of information delivered hereunder or the unavailability thereof. Due to the nature of public record information, the public records and commercially available data sources used in Vehicle Data Services may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. Vehicle Data Services are not the source of data, nor are they a comprehensive compilation of the data. Before relying on any data, it should be independently verified.
INDEMNIFICATION. Licensee hereby agrees to protect, indemnify, defend, and hold harmless Licensor from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys' fees and costs) arising from or in any way related to (a) use of information received by Licensee (or any third-party receiving such information from or through Licensee) furnished by or through Licensor; (b) breach of any terms, conditions, representations or certifications in this Agreement; (c) any Security Event and (d) claims for wrongful repossession based on information furnished by Licensee. Licensor hereby agrees to protect, indemnify, defend, and hold harmless Licensee from and against any and all costs, claims, demands, damages, losses, and liabilities (including attorneys' fees and costs) arising from or in any way related to or in connection with:(a) breach of any terms, conditions, representations or certifications in this Agreement; (b) a failure on the part of Licensor or any of its personnel to comply with applicable law or regulations in performing the Vehicle Data Services. In the event that either Licensor or Licensee shall have an indemnity claim against the other party, the party seeking indemnification shall (i) promptly give written notice of any claim to the other party; (ii) provide any assistance which may be reasonably requested for the defense of the claim (with reasonable out of pocket expenses paid by the indemnifying party); and (iii) have the right to control the defense or settlement of the claim; provided, however, that the party seeking indemnification shall have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense. Notwithstanding the foregoing, Licensor will not have any duty to indemnify, defend or hold harmless Licensee with respect to any claim of infringement resulting from (1) Licensee’s misuse of the Vehicle Data Services; (2) Licensee’s failure to use any corrections made available by Licensor; (3) Licensee’s use of the Vehicle Data Services in combination with any product or information not provided or authorized in writing by Licensor; or (4) any information, direction, specification or materials provided by Licensee or any third-party. If an injunction or order is issued restricting the use or distribution of any part of the Vehicle Data Services, or if Licensor determines that any part of the Vehicle Data Services is likely to become the subject of a claim of infringement or violation of any proprietary right of any thirdparty, Licensor may in its sole discretion and at its option (A) procure for Licensee the right to continue using the Vehicle Data Services; (B) replace or modify the Vehicle Data Services so that they become non-infringing, provided such modification or replacement does not materially alter or affect the use or operation of the Vehicle Data Services; or (C) terminate this Agreement and refund any fees relating to the future use of the Vehicle Data Services.
SURVIVAL OF AGREEMENT. Provisions hereof related to release of claims; indemnification; use and protection of information, data and Vehicle Data Services; payment for the Vehicle Data Services; audit; Licensor’s use and ownership of Licensee’s search inquiry data; disclaimer of warranties; security; Licensee data and governing law shall survive any termination of the license to use the Vehicle Data Services.
ATTORNEYS’ FEES. The prevailing party in any action, claim or lawsuit brought pursuant to this Agreement is entitled to payment of all attorneys’ fees and costs expended by such prevailing party in association with such action, claim or lawsuit.
LICENSEE CHANGES. Licensee shall notify Licensor immediately of any changes to the information on Licensee's Application for the Vehicle Data Services, and, if at any time Licensee no longer meets such criteria, Licensor may terminate this Agreement. Both parties to this Agreement agree to promptly notify the other party of a change in company ownership, any change in the name of the company, and/or any change in the physical address of the company.
RELATIONSHIP OF PARTIES. None of the parties shall, at any time, represent that it is the authorized agent or representative of the other.
CHANGE IN AGREEMENT. By receipt of the Vehicle Data Services, Licensee agrees to, and shall comply with, changes to the Restricted License granted Licensee in Paragraph 2 herein, and changes to other provisions of this Agreement as Licensor shall make from time to time by notice to Licensee via e-mail, online “click wrap” amendments, facsimile, mail, invoice announcements, or other written notification. All e-mail notifications shall be sent to the individual named in the Licensee Information section as the Administrative Contact, unless stated otherwise in this Agreement. Licensor may, at any time, impose restrictions and/or prohibitions on the Licensee’s use of the Vehicle Data Services or certain data. Licensee understands that such restrictions or changes in access may be the result of a modification in Licensor policy, a modification of third-party agreements, a modification in industry standards, a security event or a change in law or regulation, or the interpretation thereof. Upon written notification by Licensor of such restrictions, Licensee agrees to comply with such restrictions.
PRIVACY PRINCIPLES. Both parties agree to comply with all federal, state and local laws, rules and regulations applicable to each party’s receipt and use of data provided to the other. Licensor reserves the right to revise the terms, or conditions or pricing under this Agreement, any schedule and or services (including without limitation the right to withdraw or restrict affected data) to meet any requirement imposed by federal, state, or local law, rule or regulation, or to address matters concerning privacy and confidentiality, upon reasonable notice to Licensee.
PUBLICITY. Without prior consent, neither party may name or refer to the other party in any press releases, advertisements, promotional or marketing materials, or make any other third-party disclosures regarding the other party.
FORCE MAJEURE. The parties will not incur any liability to each other or to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the negligence of, the parties. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, any irregularity in the announcing or posting of updated data files by the applicable agency, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.
ENTIRE AGREEMENT. Except as otherwise provided herein, this Agreement constitutes the final written agreement and understanding of the parties and is intended as a complete and exclusive statement of the terms of the agreement, which shall supersede all other representations, agreements, and understandings, whether oral or written, which relate to the use of the Vehicle Data Services and all matters within the scope of this Agreement. Without limiting the foregoing, the provisions related to confidentiality and exchange of information contained in this Agreement shall, with respect to the Vehicle Data Services and all matters within the scope of this Agreement, supersede any separate non-disclosure agreement that is or may in the future be entered into by the parties hereto. Any new, other, or different terms supplied by the Licensee beyond the terms contained herein, including those contained in purchase orders or confirmations issued by the Licensee, are specifically and expressly rejected by Licensor unless Licensor agrees to them in a signed writing specifically including those new, other, or different terms. The terms contained herein shall supersede and govern in the event of a conflict between these terms and any new, other, or different terms in any other writing. This Agreement can be executed in counterparts and faxed or electronic signatures will be deemed originals.
MISCELLANEOUS. If any provision of this Agreement or any exhibit shall be held by a court of competent jurisdiction to be contrary to law, invalid or otherwise unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and in any event the remaining provisions of this Agreement shall remain in full force and effect. The headings in this Agreement are inserted for reference and convenience only and shall not enter into the interpretation hereof.