LOTLINX.CA TERMS OF SERVICE
The Parties hereby agree as follows:
1. Defined Terms. For purposes of these Terms of Service, the following terms will have the respective meanings set forth below. All other capitalized terms will have the meaning ascribed to such terms elsewhere within this Agreement:
1.1 “Application” means the mobile and/or web-based application that enables You to use the Application Services.
1.2 “Application Services” means certain LotLinx.ca products and services that may be available via a web-based or mobile application.
1.3 “Billing Day” means the date LotLinx.ca will bill You for Your use of the Application Services as specified under Your LotLinx.ca Application Account information. This term applies to LotLinx.ca Application Accounts.
1.4 “Campaign(s)” means the (i) marketing campaigns provided for You by LotLinx.ca wherein LotLinx.ca delivers site visitors to Your website and (ii) the marketing campaigns paid for by You to a party authorized to engage in marketing initiatives on Your behalf.
1.5 "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
1.6 “Dealer” means the entity dealership or rooftop participating in the LotLinx.ca Services, but also includes Your affiliates, and any Rooftops owned by You.
1.7 “Dealer Content” means the data and content, including the inventory and inventory related data, images, Your logos, trade-marks and Your other intellectual property, that You submit to LotLinx.
1.8 “LotLinx.ca Application Account” means the account created by You through the Application when enrolling in the Application Services.
1.9 “LotLinx.ca Services” means LotLinx.ca’s proprietary digital marketing platform and services which, among other things, delivers in-market vehicle shoppers to dealership vehicle detail pages and provides reporting and analytics on vehicle shopper activity.
1.10 “LotLinx.ca Service Content” means all copyright rights and other intellectual property rights in the LotLinx.ca Services and/or Application Services, including but not limited to any data, information, text, photos, images, graphics, code, marks, logos, audio, video, footage, animations, analyses, studies, downloads, and other content contained in this Agreement.
1.11 “Media Deposit” means the amount LotLinx.ca spends to purchase media on Your behalf when you enroll in the LotLinx.ca Services and You agree to reimburse LotLinx.ca for the purchase of such media.
1.12 “Master Services Agreement” or “MSA” means the agreement found at https://www.lotlinx.ca/dealership-enrollment/.
1.13 “Monthly Commitment” means the amount You plan on spending on LotLinx.ca Services for the then-current month.
1.14 “Publishers” means affiliates and/or online publishers that LotLinx.ca has a relationship with.
1.15 “Rooftop” means one URL associated with a dealership at one physical address.
1.16 “Service Providers” means a third party that is authorized to act on behalf of LotLinx.
2.1 LotLinx.ca Services. You agree to pay certain fees as part of Your Monthly Commitment for the LotLinx.ca Services in the amounts set forth in the MSA and any subsequent fees that You and LotLinx.ca may agree to from time to time. Certain services may be subject to a setup fee. Prior to the launch of the LotLinx.ca Services, LotLinx.ca may require a Media Deposit. Fees will be detailed in an invoice related to the Services. Fees will be due and payable on the 1st of each month. LotLinx.ca may increase fees by giving You at least thirty (30) days written notice prior to the effective date of the fee increase. You may change Your LotLinx.ca Services and reduce Your Monthly Commitment until the tenth of the then-current month. After the tenth of the then-current month, You may only increase Your Monthly Commitment. A reduction in Your Monthly Commitment will result in a credit to your account.
2.2 LotLinx.ca Application Services. You agree to pay the fees for the Application Services in the amounts set forth in the package selected by You and any subsequent fees that LotLinx.ca and You may agree to from time to time. Certain services may be subject to a setup fee. Fees will be charged monthly, on your Billing Day, to the payment method You provided when You registered for the Application Services. You agree to maintain a valid payment method during the term of Your use of the Application Services. LotLinx.ca may use a third party to process payments, and You consent to the disclosure of Your payment information to such third party. Should Your Billing Day fall on a Sunday, You will be charged the following day. LotLinx.ca may increase fees by giving You at least thirty (30) days written notice prior to the effective date of the fee increase. All payment obligations are non-cancelable, and all fees paid are non-refundable, except as specifically provided for in this Agreement.
2.3 Late Fees. If You fail to pay any fees owed to LotLinx.ca under this Agreement in a timely manner, LotLinx.ca may (i) charge and collect from You a finance charge equal to the lower of 1.5% per month or the maximum amount permitted by law, (ii) immediately interrupt or permanently terminate all LotLinx.ca Services and/or Application Services without notice, and (iii) recover from You all costs incurred in connection with collection of past due amounts (including, but not limited to collection agency fees and reasonable attorney fees).
2.4 Taxes. All fees are subject to applicable taxes whether or not such Taxes are included at the time the fees are billed. You assume exclusive liability for, and will pay before delinquency, all taxes, other charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the LotLinx.ca Services and/or Application Services except for taxes based on the net income of LotLinx.ca or the Services Provider.
3. Changes to Your Subscription for the Application Services.
3.1 Changes to Your Subscription. You may change your subscription at any time. If You change Your subscription to a higher priced subscription, the subscription change will be effective immediately, and You will be billed pro-rata for the subscription change on the day You make the subscription change. Changes in Your subscription will not change Your Billing Day. If You change Your subscription to a lower priced subscription, the subscription change will take effect on Your next Billing Day.
3.2 Additional Rooftops. The Application can support the Application Services for multiple Rooftops. If You intend on using the Application Services for multiple Rooftops, You will need to purchase individual subscriptions to the Application Services for each Rooftop for which You intend on using Application Services.
3.3 Campaign Budgeting. When allocating Your Campaign budget, You can select what percentage to apply towards the Application Services. Full Campaign budgets in the Application experience may be shown as a whole number, rounded to the nearest dollar. Any amounts that do not divide evenly will be shown on the Application Services side of the Application experience.
4. Dealer Account, Password, and Security.
4.1 LotLinx.ca Services. LotLinx.ca will provide You a non-exclusive, revocable, non-sublicensable, real-time license to access reporting via a secure, confidential login to the LotLinx.ca Dealer Portal. You will not share Your login information with a third party without the prior written consent of LotLinx. You are solely responsible for any and all activities that occur under Your LotLinx.ca Dealer Portal account (“Dealer Account”). You will notify LotLinx.ca immediately upon learning of any unauthorized use of Dealer Account or any other breach of security. LotLinx.ca’s support staff may, from time to time, log in to the Dealer Account under the Your established password in order to maintain or improve service, including but not limited to providing You assistance with technical or billing issues.
4.2 LotLinx.ca Application Services. You are solely responsible for any and all activities that occur under Your LotLinx.ca Application Account. You will notify LotLinx.ca immediately upon learning of any unauthorized use of Your LotLinx.ca Application Account or any other breach of security. LotLinx.ca’s support staff may, from time to time, log in to the LotLinx.ca Application Account under Your established password in order to maintain or improve service, including but not limited to providing You assistance with technical or billing issues.
5. LotLinx.ca Tracking Code & Google Analytics.
5.1 LotLinx.ca Services. As a requirement to receive LotLinx.ca Services, You will grant LotLinx.ca access to Your Google Analytics account to setup Your ability not only to identify the quantity of sessions sent to Your VDP, but also to assess the quality of traffic through the LotLinx.ca “Edit and Collaborate” service for Google Analytics and other optimizing features.
5.2 LotLinx.ca Application Services. You may grant LotLinx.ca access to Your Google Analytics account to setup Your ability not only to identify the quantity of sessions sent to Your VDP, but also to assess the quality of traffic through the LotLinx.ca “Edit and Collaborate” service for Google Analytics and other optimizing features.
5.3 Cooperation to Setup LotLinx.ca Services. You will cooperate with LotLinx.ca to setup the LotLinx.ca Services. Cooperation with setting up the LotLinx.ca Services will include, but not be limited to instructing each of Your website administrators to facilitate the integration of the LotLinx.ca Tracking Code. LotLinx.ca will deploy Google Tag Manager events and the LotLinx.ca Events Tracking Tool which will inform Google Analytics when visitors are looking at the pictures on Your VDP or track other Campaigns. LotLinx.ca will initiate retargeting Campaigns on Your behalf for Inventory engaged in the LotLinx.ca Services. USE OF GOOGLE ANALYTICS INCORPORATED IN THE LOTLINX.CA SERVICES WILL BE GOVERNED BY THE THEN CURRENT STANDARD TERMS AND CONDITIONS OF THE SOFTWARE LICENSOR AVAILABLE AT WWW.GOOGLE.COM/ANALYTICS.
6. Dealer Content.
6.1 License. You hereby grant LotLinx.ca a perpetual, irrevocable, royalty-free, and non-exclusive license to use, copy, encode, enhance, store, reproduce, edit, adapt, modify, translate, transmit, publish, syndicate, sublicense, and publicly display the Dealer Content so LotLinx.ca can provide You with the LotLinx.ca Services and/or Application Services. LotLinx.ca reserves the right to share Dealer Content with Publishers. Publishers may, among other things, enhance Dealer Content to provide specific information related to the Publisher’s target audience. You will not obtain any ownership right or license to any LotLinx.ca or Publisher content or enhancements made to Dealer Content. You will retain any copyright and any other rights You already hold in the Dealer Content that You submit, post or display on or through the LotLinx.ca Services and/or Application Services, or which You provide to LotLinx.ca and/or its Service Providers.
6.2 Rights to Dealer Content. You agree not to provide LotLinx.ca with Dealer Content that You do not have the right to provide or that LotLinx.ca does not have the right to publish or syndicate. You agree not to provide any Dealer Content that infringes or misappropriates any third party rights, advertises illegal goods or services, or is defamatory, inaccurate or otherwise tortious or criminal. If You discover that Dealer Content supplied to LotLinx.ca violates the foregoing, You must (a) immediately upload new, correct Dealer Content, and (b) notify LotLinx.ca at email@example.com. If LotLinx.ca discovers that Dealer Content violates the foregoing, LotLinx.ca will (a) immediately remove the Dealer Content that violates this Section 6.2, and (b) will notify You so You can provide LotLinx.ca with new Dealer Content. YOU AGREE TO DEFEND AND INDEMNIFY LOTLINX.CA FOR ANY CLAIM RELATING TO DEALER CONTENT, EXCEPT TO THE EXTENT THE CLAIM IS BASED ON MODIFICATION OR ALTERATION MADE TO SUCH DEALER CONTENT BY LOTLINX.CA.
6.3 Dealer Content Representations and Warranties. YOU HEREBY REPRESENT AND WARRANT THAT ANY AND ALL DEALER CONTENT SUBMITTED FOR PUBLICATION OR DISPLAYED ON YOUR WEBSITE WILL NOT VIOLATE OR OTHERWISE INFRINGE UPON ANY COPYRIGHT, TRADE-MARK, PATENT, STATUTORY, REGULATORY, PROVINCE OF MANITOBA AND THE FEDERAL LAWS OF CANADA, POLICY, PRIVACY, OR PROPRIETARY RIGHT OF OTHERS, OR CONTAIN ANYTHING CONSIDERED OBSCENE OR LIBELOUS. YOU HEREBY AGREE THAT YOUR PERFORMANCE OF YOUR OBLIGATIONS UNDER THIS AGREEMENT, AND THE OPERATION OF YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO THE USE OF SALES LEADS AND USE AND MAINTENANCE OF CONSUMER PERSONAL DATA, WILL COMPLY WITH ALL APPLICABLE PRIVACY POLICIES, THIRD PARTY AGREEMENTS, AND ALL APPLICABLE PROVINCIAL AND CANADIAN FEDERAL LAWS AND PRIVACY REGULATIONS.
6.4 Dealer Content Access Upon Termination. In the event You or LotLinx.ca terminates or otherwise cancels this Agreement, LotLinx.ca retains the rights to access Your inventory feed and/or AdWords account until You request that LotLinx.ca disables access to the inventory feed and/or AdWords account, or until You disable LotLinx.ca’s access to the inventory feed and/or AdWords account.
7. Term and Termination.
7.1 Dealer Cancellation for LotLinx.ca Services. To cancel the LotLinx.ca Services, You must contact Your LotLinx.ca Representative assigned to Your account. Cancellation will be effective on the last day of the first full month following receipt of the email notice cancelling the LotLinx.ca Services. For example, if LotLinx.ca receives Your email notice on October 15th, the LotLinx.ca Services provided to You will end on November 30th. If You provided a Media Deposit when You enrolled in the LotLinx.ca Services, LotLinx.ca will use the Media Deposit towards delivering You additional LotLinx.ca Services until the balance of the Media Deposit reaches $0. LotLinx.ca will not refund any part of a Media Deposit.
7.2 Dealer Cancellation for LotLinx.ca Application Services. You may cancel the Application Services through the settings on the Application. You will no longer have access to the Application Services at the end of your then-current billing cycle.
7.3 LotLinx.ca Termination. LotLinx.ca may terminate this Agreement, and cease providing the LotLinx.ca Services and/or Application Services, immediately in the event (a) You fail to pay any applicable fees when due, (b) You breach the terms and conditions of this Agreement, or (c) the LotLinx.ca Services and/or Application Services, or any part thereof, are deemed by LotLinx.ca or alleged or determined by an appropriate governmental authority to violate any local, state, or federal law or regulation. LotLinx.ca may, at any time and for any other reason, terminate this Agreement upon thirty (30) days prior written notice to You. For purposes of this section, email notice of LotLinx.ca’s intent to terminate the LotLinx.ca Services and/or Application Services provided to You will be acceptable as a form of written notice.
9. Changes to the LotLinx.ca Services and/or Application Services. LotLinx.ca reserves the right to modify or change the LotLinx.ca Services and/or Application Services provided at any time. LotLinx.ca will make reasonable commercial efforts to have such changes become effective thirty (30) days from the date LotLinx.ca gives You notice of such changes. However, changes to the LotLinx.ca Services and/or Application Services that relate to a new feature or changes for legal reasons will become effective immediately. Some modifications or changes may result in a fee increase or decrease for such LotLinx.ca Services and/or Application Services. Your continued use of the LotLinx.ca Services and/or Application Services after the effective date of such changes will constitute Your acceptance of the change in the LotLinx.ca Services and/or Application Services and Your agreement to pay the fees associated with such change.
10. Proper Usage of the Application Services or Application. You may not use the Application Services or the Application in a manner that: is not a good faith use of the Application Services and/or the Application; infringes on a third party’s intellectual property rights; is illegal, unlawful, or malicious; deemed improper by LotLinx.ca in LotLinx.ca’s sole discretion; is defamatory, threatening, abusive, intimidating, or otherwise violates the rights of other, including without limitation other’s privacy rights or rights of publicity; accesses or uses (or attempts to access or use) another Dealer Customer’s LotLinx.ca Application Account without permission, or solicit another Dealer Customer’s login information; transmits any software or materials that contain any viruses, worms, trojan horses, defects , or other items of a destructive nature; frame or mirror any portion of the LotLinx.ca website, Application Services, LotLinx.ca Services, or Application; or harvests or collects information about or from other Dealer Customers; probes, scans, or tests the vulnerability of the LotLinx.ca website, Application Services, LotLinx.ca Services, or Application.
11. Restriction on the use of LotLinx.ca Services and/or Application Services. Use of the LotLinx.ca Services and/or Application Services is subject to the applicable policies of the Publishers that display Dealer Content via ads, videos, or other advertising media in connection with the LotLinx.ca Services and/or Application Services, including without limitation any Publisher’s or applicable third party policies. You are solely responsible for the accuracy of Dealer Content and You agree to comply with all applicable laws, regulations, advertising policies, and communication policies. LotLinx.ca or the Service Providers may modify Dealer Content to comply with any laws, regulations, or Policies in its sole discretion. Where LotLinx.ca or Service Provider has modified such Dealer Content, LotLinx.ca will be responsible for such modification. You may use the LotLinx.ca Services and/or Application Services only for purposes that are permitted under this Agreement, and in accordance with applicable laws and regulations. You agree not to access, or attempt to access, any of the secure web services by any means other than through the interfaces that are made accessible by LotLinx.ca or the Services Provider. Without limiting the foregoing, You agree not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of any secure web service or other program associated with the LotLinx.ca Services and/or Application Services.
12. Access to Your Website. In the event the performance of the LotLinx.ca Services and/or Application Services requires LotLinx.ca or the Service Provider to access Your inventory and analytics to perform the LotLinx.ca Services and/or Application Services, You will specifically request and authorize such access for LotLinx.ca and will provide, and have all rights and authorizations required to provide access to such information. You understand and agree that LotLinx.ca and/or a Service Provider may engage a data polling service to poll and transmit data from the Your inventory or other systems in order to provide the services requested. You hereby grant to LotLinx.ca and each Service Provider a royalty-free, non-exclusive, non- transferable, perpetual license to use sales and inventory data (to the extent available) obtained from Your computer systems for the purposes of (a) consumer, vehicle, and industry research and reference, (b) evaluation of performance, (c) combining with other data to create proprietary reports and guides, and (d) generating market analysis data and related products; provided, the sales and inventory data shall not be used to sell to Your name any third party or provide the individual name of any consumer or customer.
13. Promotions and Incentives. LotLinx.ca may offer promotions or incentives from time-to-time. This Agreement applies to all promotions and incentives now and in the future and are a condition of and binding on Your eligibility and participation in the same. Additional terms, qualifications, stipulations, and conditions may be stated on individual promotion and incentive notices that You may receive directly from LotLinx. All promotions and incentives are subject to certain eligibility requirements, such eligibility requirements will be described in the specific promotion or incentive notice sent to You. All promotions and/or incentives are subject to any local or state laws or limitations and are not valid in conjunction with any other promotions, incentives, or offers. Should a promotion or incentive offer You lower fees for a certain period of time, all fees will return to their full retail price upon expiration of the promotion or incentive.
14. Nonexclusive License. Provided You are not in default of any obligations under this Agreement, and provided You have paid all applicable fees, LotLinx.ca grants You a personal, revocable worldwide, royalty-free, non-assignable, and non-exclusive license, without the right to sublicense, to use the LotLinx.ca Services and/or Application Services, LotLinx.ca Service Content, and any trade-mark included herein, provided to You by LotLinx.ca as part of the LotLinx.ca Services and/or Application Services provided to You. This non-exclusive license is for the sole purpose of enabling You to use and enjoy the LotLinx.ca Services and/or Application Services in the manner permitted by this Agreement. This License will terminate upon the termination of this Agreement, as further described in Section 7. You will not, and You will not allow any third party to, (i) copy, modify, adapt, translate or otherwise create derivative works of the LotLinx.ca Services and/or Application Services or any documentation provided to You by LotLinx; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the LotLinx.ca Services and/or Application Services, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the LotLinx.ca Services and/or Application Services or the documentation provided to You by LotLinx; (iv) remove any proprietary notices or labels on the LotLinx.ca Services and/or Application Services or placed by LotLinx; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the LotLinx.ca Services and/or Application Services; or (vi) use data labeled as belonging to a third party in the LotLinx.ca Services and/or Application Services for purposes other than generating, viewing, and downloading reports made accessible by LotLinx. You will comply with all applicable laws and regulations in Your use of and access to the LotLinx.ca Services and/or Application Services.
15. Confidentiality. Neither Party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
16. Indemnification. You will indemnify and hold harmless LotLinx.ca and its affiliates and our and their respective officers, directors, agents and employees (each an “Indemnified Party”), from any claim made by any third party, together with any amounts payable to the third party whether in settlement or as may otherwise be awarded, and reasonable legal costs incurred by any of the Indemnified Parties, arising from or relating to your use of the LotLinx.ca Services, any alleged violation by You of the applicable terms, and any alleged violation by You of any applicable law or regulation. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, but doing so will not excuse your indemnity obligations.
17. No Product or Service Warranties. IF YOU RELY ON THE LOTLINX.CA WEBSITE OR ANY INFORMATION, PRODUCT OR SERVICE AVAILABLE THROUGH LOTLINX, YOU DO SO AT YOUR RISK. YOU UNDERSTAND THAT THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, INACCURACIES, AND/OR OTHER PROBLEMS WITH THE INFORMATION, PRODUCTS, AND SERVICES PUBLISHED ON OR PROMOTED OVER LOTLINX.CA’S WEBSITE AND/OR THROUGH AFFILIATED PRODUCTS OR SERVICES. LOTLINX.CA’S WEBSITE AND ANY AFFILIATED PRODUCTS AND SERVICES ARE PROVIDED TO YOU “AS IS.” LOTLINX.CA AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH LOTLINX.CA’S WEBSITE OR THE LOTLINX.CA PRODUCT OR LOTLINX.CA SERVICES OR APPLICATION SERVICES (OR ANY INFORMATION, GOODS OR SERVICES THAT ARE REFERRED TO, ADVERTISED OR PROMOTED ON, OR SOLD THROUGH LOTLINX), NOR DOES LOTLINX.CA OR ITS AFFILIATES, AGENTS AND LICENSORS GUARANTEE THAT THE LOTLINX.CA WEBSITE AND/OR ANY AFFILIATED PRODUCT OR SERVICE WILL BE ERROR FREE OR CONTINUOUSLY AVAILABLE, OR THAT THE LOTLINX.CA WEBSITE OR LOTLINX.CA SERVICES OR APPLICATION SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE LOTLINX.CA PRODUCTS, LOTLINX.CA SERVICES, APPLICATION SERVICES AND THE CONTENT IS AT YOUR SOLE RISK AND IS PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, LOTLINX, THE SERVICE PROVIDER(S) AND THEIR AFFILIATES AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE LOTLINX.CA SERVICES AND/OR APPLICATION SERVICES OR THE CONTENT WILL MEET YOUR SUBJECTIVE REQUIREMENTS, OR (B) YOUR USE OF THE LOTLINX.CA SERVICES AND/OR APPLICATION SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR (C) YOU WILL BE PROVIDED WITH A MINIMUM NUMBER OF SALES LEADS, SHOPPERS, OR ACHIEVE A SPECIFIC NUMBER OF CONVERSIONS OF SALES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LOTLINX.CA SERVICES AND/OR APPLICATION SERVICES, INCLUDING ANY CONTENT, IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LOTLINX.CA OR ANY SERVICE PROVIDER OR THROUGH OR FROM THE USE OF THE LOTLINX.CA SERVICES AND/OR APPLICATION SERVICES SHALL CREATE ANY WARRANTY.
18. LIMITATION OF LIABILITY. EXCEPT FOR EACH LOTLINX.CA INDEMNIFICATION OBLIGATION, EACH OF LOTLINX.CA’S LIABILITY TO YOU OR YOUR AFFILIATES, FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE WILL NOT EXCEED THE AMOUNT PAID BY YOU TO LOTLINX.CA DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES. NOTWITHSTANDING THE FOREGOING, LOTLINX.CA’S LIABILITY TO YOU FOR A BREACH OF YOUR DATA, CORRUPTION OF YOUR DATA, FAILURE TO STORE YOUR DATA, INTERRUPTION OF YOUR DATA, OR OTHER FORM OF DATA UNAVAILABILITY/CORRUPTION, WILL NOT EXCEED THE AMOUNT PAID BY YOU TO LOTLINX.CA DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY AROSE. IN NO EVENT WILL LOTLINX.CA BE LIABLE TO YOU FOR ANY NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, MISREPRESENTATION, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, DIRECT LOST PROFITS, INDIRECT LOST PROFITS, OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WEHTERH SUCH LIABILITY IS ASSERTED ON THE BASIS OR CONTRACT, TORT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT LOTLINX.CA’S LIMITATIONS OF LIABILITY DETAILED ABOVE APPLIES TO LOTLINX, THE SERVICE PROVIDERS, LOTLINX.CA’S EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AFFILIATES, AND LICENSORS. YOU FURTHER AGREE THAT THE MAXIMUM LIABILITY FOR LOTLINX, THE SERVICE PROVIDERS, LOTLINX.CA’S EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AFFILIATES, AND LICENSORS UNDER THIS AGREEMENT BOTH INDIVIDUALLY AND IN THE AGGREGATE FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE LAST EVENT GIVING RISE TO LIABILITY.
19. Proprietary Rights Notice. The LotLinx.ca Service Content is owned by or licensed by LotLinx, and protected by law, including copyrights, database, trade secret, and trade-mark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations. The LotLinx.ca Service Content is Copyright 2002, LotLinx, Inc., all rights reserved. LotLinx.ca also owns copyright rights in collective works and/or compilations and in any and all databases accessible on or through the LotLinx.ca Services and/or Application Services. LotLinx.ca and all other marks displayed on the LotLinx.ca Services and/or Application Services (collectively the "Trade-marks") are registered and/or common law trade-marks of LotLinx.ca and/or various third parties. Except as expressly stated herein, nothing contained in the LotLinx.ca Services and/or Application Services may be construed as granting, by implication, estoppel, or otherwise, any grant, license or right to use any licensed copyright or trade-mark without the prior written permission of LotLinx.ca or such other party that may own the trade-marks or any licensed copyrights. The LotLinx.ca Services and/or Application Services, which includes any copyrights and all intellectual property rights therein are, and will remain, the property of LotLinx. All rights in and to the LotLinx.ca Services and/or Application Services not expressly granted to You in this Agreement are reserved and retained by LotLinx.ca and its licensors without restriction, including, LotLinx's right to sole ownership of the LotLinx.ca Services and/or Application Services and any documentation provided to You by LotLinx. Without limiting the generality of the foregoing, You agrees not to (and not to allow any third party to): (a) sublicense, distribute, or use the LotLinx.ca Services and/or Application Services outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the LotLinx.ca Services and/or Application Services or otherwise attempt to discover any source code or trade secrets related to the LotLinx.ca Services and/or Application Services; (c) rent, lease, sell, assign or otherwise transfer rights in or to the LotLinx.ca Services and/or Application Services; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the LotLinx.ca Services and/or Application Services; (e) use the trade-marks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the LotLinx.ca Services and/or Application Services for any purpose without the express written consent of LotLinx; (f) register, attempt to register, or assist anyone else to register any trade-mark, trade name, marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with LotLinx.ca other than in the name of LotLinx; (g) transfer to another Dealership or any other entity any sales leads, or any data included in any sales leads, delivered to You in connection with the LotLinx.ca Services and/or Application Services; (h) remove, obscure, or alter any notice of copyright, trade-mark, or other proprietary right appearing in or on any item included with the LotLinx.ca Services and/or Application Services; or (i) challenge or contest, whether directly or indirectly, the validity of LotLinx.ca’s ownership of such copyrights, trade-marks, or any other intellectual property, or assist any other third party in doing so.
20. Force Majeure. Each Party to this Agreement shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation contained within this Agreement, in whole or in part, as a result of delays caused by the other Party, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or non-availability of electrical power, heat, light, air conditioning, computing or information systems or telecommunications equipment or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any date data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.
21. Notices. Any notice to be provided under this Agreement shall be in writing and shall be delivered via one of the following methods: (1) to You at the email address provided by You under the MSA, (2) to You at the email address provided by You when You created Your LotLinx.ca Application Account, or (3) to You via a notification in the Application. Dealers enrolled in the LotLinx.ca Services may notify LotLinx.ca in writing that You require notices to be delivered to an alternative address. Notices will be considered delivered when received. Notices sent to LotLinx.ca should be sent to the LotLinx Canada Manitoba office address listed on www.lotlinx.ca, with copies to Finance, Chief Operating Officer, and Legal.
22. Waiver. No delay in exercising any right, power, or remedy under this Agreement shall operate as a waiver of such right, power, or remedy, nor will any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of that right, power, or remedy.
23. Severability. If any provision of this Agreement shall be 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 of this Agreement. Headings used in this Agreement are for reference and convenience only and are not part of this Agreement.
24. Assignment. You may not assign this Agreement without the prior written approval of LotLinx, except that no approval shall be required to assign this agreement to any person or entity which is, directly or indirectly, controlled by, controlling, or under common control with You. LotLinx.ca may assign this Agreement, so long as LotLinx.ca provides notice to You as soon as practicable. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors and assigns.
25. Prohibited Countries Policy and Foreign Trade Regulation - Applications. The Application or its underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) any country subject to United States embargo; (b) to anyone on the U.S. Department of the Treasury’s list of Specially Designated Nationals or on the U.S. Department of Commerce’s Denied Party or Entity List; and (c) to any prohibited country, person, end-user, or entity specified by U.S. export laws. When using the Application, you are responsible for complying with trade regulations and both foreign and domestic laws (e.g., you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country, and you are not listed on any U.S. government list of prohibited or restricted parties).
26. Governing Law, Venue for Resolving Disputes, Binding Arbitration. The laws and jurisdiction of the Province of Manitoba and the applicable federal laws of Canada governs this Agreement and the provision of the LotLinx.ca Services and/or Application Services by LotLinx.ca and its Service Providers. We both submit to the jurisdiction of the courts of the Province of Manitoba.
27. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties in regard to the subject matter contained within this Agreement. This Agreement supersedes all prior agreements, consents and understandings whether oral or written in regard to the subject matter of this Agreement.
Last Updated January 1, 2019
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