Superservice Terms and Conditions

By signing the ORDER FORM, you accept these TERMS AND CONDITIONS which will govern the supply of software products and services by Infomedia.

1. DEFINED TERMS

The following capitalized terms are defined terms for the purposes of this agreement:

Commencement Date: The date from which this agreement commences between the parties and is deemed to be the earlier of (i) the date on which the Dealer signs the Order Form or (ii) the date on which Infomedia start to provide any products or services to the Dealer.

Committed Term: means the period in months set out in the Order Form that commences on the Software Activation Date.

Dealer or ‘you’: Refers to the party specified as the Dealer in the Order Form and extends to include the employees and agents of the Dealer as context requires.

DMS: Dealer Management System, being a third party application which is licensed by the Dealer.

DMS Integration Fee: the monthly fee levied by the DMS which is passed at cost by Infomedia to you and may be varied by the DMS at any time.

EULA: the End User Licence Agreement as defined in clause 3.

Infomedia: Infomedia Ltd A.C.N 003 326 243 of Level 5, 155 Clarence Street, Sydney NSW 2000, Australia or its nominee.

Installation & Training Services: The installation and training services described in clause 2 below.

Order Form: the Superservice Order Form signed by the Dealer and which sets out the Software, Services and Fees.

Software: Infomedia’s proprietary Superservice software which provides quoting and inspection functions, including Triage and Menus.

Software Activation Date: The date on which the Software is activated and or made available to the Subscribers.

Subscriber: The individual user(s) of the Software.

2. INSTALLATION & TRAINING SERVICES

2.1 DEALER OBLIGATIONS

1. Upon receipt of a signed Order Form, Infomedia will schedule the Installation & Training Services with the Dealer at a mutually convenient time, generally within 30 days of the Commencement Date.
2. Dealer must complete (and return all fully completed documentation and surveys to Infomedia) the following tasks within ten (10) business days of the Commencement Date to enable Infomedia to perform its obligations in clause 2.2:
   • populate the online survey with all dealer specific information as specified in the survey;
   • complete all applicable DMS integration requests and verify that its DMS has been correctly updated with up to date pricing and labour times;
   • identify the users of the system and make them available for onsite training;
   • grant Infomedia access to the Dealer premises to conduct onsite training and one on one product assistance;
   • provide a room for the training to occur which is reasonably sufficiently sized and equipped to facilitate user training;
   • review the recommended IT requirements and participate in an Information Technology (“IT”) review session with Infomedia and ensure all recommended IT required changes are implemented prior to the mutually scheduled training date, including any wireless or network upgrades that may be required; and
   • formally acknowledge that the training has been completed after the scheduled installation.
3. In the event of any ad hoc requests or delays by the Dealer, Infomedia may at its option reschedule the Installation and Training Services and charge the Dealer any reasonable costs or travel incurred by Infomedia because of such ad hoc requests or delays.

2.2 INFOMEDIA’S OBLIGATIONS

Infomedia will, subject to the Dealer’s completing its obligations in Clause 2.1,

1. set up user login credentials prior to onsite installation per the user information;
2. where available, ensure DMS integration has been initialized;
3. conduct a remote IT assessment with the designated IT personnel from the Dealer prior to the installation and provide any recommendations;
4. schedule onsite training and installation with the Dealer focused on minimizing interruption by providing a choice of sessions;
5. conduct onsite training for all identified dealer personnel;
6. have onsite resources work with the dealership personnel for the previously determined period of the install, and to work one on one with dealership personnel in the use of the solution; and
7. Provide further follow-up via See and Learn videos, available Webinars and the Infomedia Customer Support center.

3. SOFTWARE: TERMS OF USE

1. The terms of use governing the use and licensing of the Software are set out in Infomedia’s standard form End User License Agreement(s) (“EULA”) (which can be found here) and forms a binding agreement between Infomedia and each Subscriber.
2. The Dealer and each Subscriber must comply with the terms of the EULA always.
3. Without in any way limiting the terms of the EULA, the Dealer hereby warrants that they will (i) comply with all laws, including without limitation, all privacy and disclosure laws when transmitting data to Infomedia or its affiliates (ii) not copy, misuse, disclose any users names or passwords, alter, circumvent, reverse engineer, recompile, decompile, disassemble, resell, pass-through, sub- license, rent, lease, timeshare or re-brand any part of the Software, nor shall it facilitate, induce or permit any other party to do the same.
4. Nothing in this agreement shall be construed as conferring any right, interest or title in the other party’s intellectual property.
5. To the extent of any inconsistency between the EULA and the terms of this agreement, the terms of the EULA will prevail.

4. PRICING AND PAYMENT TERMS

4.1 Infomedia will issue invoices as follows:

1. on execution of the Order Form, for the selected Installation and Training Services Fee and the first month of Software Fees in advance, as set out in the Order Form;
2. on Software Activation, ongoing monthly Software Fees (and pro rata for part of any month); and
3. any DMS Integration Fees charged by your DMS on a pass thru basis.

4.2 Any ad hoc or additional services or programs requested by the Dealer and which are not a part of the Software shall be provided at Infomedia’s then current charges and will be invoiced by Infomedia.

4.3 Infomedia is entitled to start to charge the ongoing month Software Fees from the date the Software is made available for use by the Dealer regardless of any delays or inability of the Dealer to use the same, including due to any IT issues or DMS Integration issues, unless such delays were directly caused by Infomedia.

4.4 All Fees exclude any applicable taxes, duties or levies which will be added to each Invoice. If you are required by local law to withholding tax, you will pay the same to the relevant tax authority and provide Infomedia with the relevant tax receipts or tax certificates to be able to claim a tax credit.

4.5 Invoices are due with 14 days of issue.

5. TERM & TERMINATION

5.1 Term & Renewal
This Agreement will commence with effect from the Commencement Date and remains in force until the end date of the Committed Term unless validly terminated earlier. Dealer agrees to maintain the minimum monthly subscription to the Software as set out in the Order Form during the Committed Term and is not cancellable. Upon expiration of the Committed Term, this Agreement will automatically renew under the same terms and conditions for further 12 month periods, save that fees may be adjusted by Infomedia at time of renewal to reflect the Consumer Price Index (being movements in the Consumer Price Index (CPI) as published by the Australian Bureau of Statistics under the “All Groups” index”).

5.2 Termination
This Agreement may only be terminated as follows:

1. At the expiration of the Committed Term by the Dealer by giving at least thirty (30) days’ prior written notice to Infomedia prior to the expiration of the current Committed Term;
2. By Infomedia with immediate effect if the Dealer is in breach of this agreement, goes into liquidation, receivership or any form of administration, or if any Subscriber is in breach of the terms of any End User License Agreement; or
3. By Infomedia if the continued supply of the Software would infringe, or becomes likely to infringe third party intellectual property including in the circumstances described in the clause 6 below.

All rights and liabilities accrued pre-termination shall remain enforceable between the parties.

6. THIRD PARTY AGREEMENTS

6.1 Subscribing Dealer acknowledges and agrees that certain Infomedia products and/or certain functionalities within the Infomedia products may be reliant on (i) the availability of data from Original Equipment Manufacturers (the OE Data) and/or (ii) single or bi-directional integration with third party dealer management systems (DMS Integration). Infomedia obtains the right to use the OE Data and/or offer the DMS Integration pursuant to separate agreements with OE’s and DMS providers from time to time (Third Party Agreements).

6.2 If any Third Party Agreement is terminated for any reason then Infomedia may unilaterally elect to take one or more of the following steps in order to prevent infringement of any legal right of any third party: (i) limit the functionality of the Infomedia Products; (ii) cease supplying some or all of the Infomedia Products; or (iii) terminate this Agreement. Infomedia will use reasonable endeavors to give advanced notice regarding any action taken under this clause and the reasons for the same.

7. WARRANTY

7.1 Infomedia warrants that it will use suitably qualified personnel to render the Installation & Training Services in a professional and timely manner. Infomedia does not warrant that the Software or services will be uninterrupted. Dealer shall ensure that all users of the Software are suitable trained and competent and are made aware of the limitations of any recommendations made by the Software (which are based on user input and use manufacturer recommendations) and that they apply their technical skills and knowledge in reviewing and implementing any recommendations.

7.2 Infomedia represents and warrants to the Dealer that it has (a) all necessary ownership, rights and licenses to grant the Dealer the license herein free and clear of any and all agreements, liens, adverse claims, encumbrances and interests of any person; (b) in all cases where the trademark, copyright or other intellectual property of a third party is used in connection with the Software, Infomedia has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used; and (c) that the use of the Software as contemplated by this Agreement will not infringe the intellectual property rights of any third party when used in accordance with this Agreement, including the EULA.

7.3 Statutory Warranties. Infomedia liability for  a breach of a condition or warranty implied by law and which cannot be excluded, is limited to the extent possible, at Infomedia’s option, to:

• The supply of the goods or services again;
• The payment of the cost of having the goods or services supplied again or repaired.
• The refund of the fee paid, capped at 1 month.

7.4  Exclusion of all other warranties – To the maximum extent permitted by applicable law, Infomedia, its licensors and authorised suppliers all disclaim any and all other warranties, either expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose with respect to the service, the product information and/or the interface.

8. LIABILITY

8.1 EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, TO THE EXTENT PERMITTED BY LAW, INFOMEDIA’S LIABILITY FOR ALL CLAIMS DURING THE TERM SHALL NOT EXCEED IN AGGREGATE AN AMOUNT EQUAL TO THE MONTHLY SOFTWARE AND/OR SERVICE FEES PAID BY THE DEALER FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED.

8.2 IN NO EVENT SHALL INFOMEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, AFFILIATES, SUBCONTRACTORS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE OR DATA) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF THE PERFORMANCE OF THE SERVICES, EVEN IF INFOMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. DATA PROTECTION

In order to provide services to the Dealer and Subscribers under this Agreement and in using the Software, Infomedia may be required to collect and use person identifiable information (PII) in accordance with the Infomedia Privacy Policy. The Dealer and each Subscriber warrants that if they enter or provide any PII of a third party when using the Software, that they have obtained the consent of that third party to do so.

10. GENERAL

10.1 This Agreement, together with the EULA, forms the entire agreement between the parties.

10.2 This Agreement is governed by the laws of NSW Australia.

10.3 The Dealer may not assign, novate or transfer this Agreement without the prior written consent of Infomedia and then only if it the incoming party agrees in writing to the terms and conditions of this Agreement in a manner acceptable to Infomedia.

10.4 Each party warrants that they enter into this contract freely and without relying on any verbal or documentary representations other than as recorded in the agreements between the parties.

10.5 This agreement may only be varied in writing between the parties and subject to the signature of an authorized representative of each.

10.6 Each party bears its own costs in entering into this agreement.

10.7 Each party will comply with any export control laws in its use of the Software under this Agreement.

These terms and conditions form part of the SUPERSERVICE ORDER FORM. When the ORDER FORM is accepted by you, these TERMS AND CONDITIONS are accepted and apply to the supply of products and services by Infomedia.

1. DEFINED TERMS

The following capitalized terms are defined terms for the purposes of this agreement:

Committed Term: means the period in months set out in the Order Form that commences on the Software Activation Date.

Commencement Date: The date from which this agreement commences between the parties and is deemed to be the earlier of (i) the date on which the Dealer accepts the Order Form by signature or (ii) the date on which Infomedia start to provide any products or services to the Dealer.

Dealer or ‘you’: Refers to the party specified as the Dealer in the Order Form and extends to include the employees and agents of the Dealer, as context requires.

DMS: Dealer Management System

DMS Integration Fee: the monthly fee levied by the DMS which is passed at cost by Infomedia to you and may be varied by the DMS at any time.

Infomedia: Infomedia Ltd of Level 5, 155 Clarence Street, Sydney NSW 2000, Australia or its authorized nominee, being IFM America’s Inc of P.O. Box 701904, Plymouth MI 48170, USA.

Installation & Training Services: The installation and training services described in clause 2 below.

Order Form: The order form signed by the Dealer and which sets out the Software and Services.

Software: Infomedia’s proprietary Superservice software.

Software Activation Date: The date on which billing commences in accordance with clause 4.1.

Subscriber: The individual user(s) of the Software.

2. INSTALLATION & TRAINING SERVICES

2.1 Dealer obligations

1. Upon receipt of a signed Order Form, Infomedia will schedule the Installation & Training Services with the Dealer for a mutually convenient date and time, generally within 30 days of the Commencement Date.
2. Dealer must complete (and return all fully completed documentation and surveys to Infomedia) the following tasks at least 10 business days prior to the scheduled day on which the onsite portion of the Installation & Training Services are to occur:
   1. populate the Infomedia online survey with all dealer specific information;
   2. manage the DMS to complete all applicable DMS integration requests;
   3. identify the users of the system and make them available for onsite training;
   4. grant Infomedia access to the Dealer premises to conduct onsite training and one on one product assistance;
   5. provide a room for the training to occur which is reasonably sufficiently sized and equipped to facilitate user training;
   6. participate in an Information Technology (“IT”) review session with Infomedia to ensure the Dealer IT Systems meet the recommended minimum IT requirements
   7. ensure all required IT changes prior to the mutually scheduled Installation and Training date, including any wireless or network upgrades that may be required; and
   8. formally acknowledge that the training has been completed at the conclusion of the scheduled installation.
3. In the event of any ad hoc requests or delays by the Dealer, Infomedia may at its option reschedule the Installation and Training Services and charge the Dealer at its then current charges for such delays and travel incurred by Infomedia.

2.2 Infomedia’s obligations

Subject to performance of Dealer’s obligations, Infomedia will perform the following Installation and Training Services:

1. set up user login credentials prior to installation per the Dealer user information;
2. where available, ensure DMS integration has been initialized;
3. conduct a remote IT assessment with the designated IT personnel from the Dealer prior to the installation;
4. schedule training and installation with the Dealer focused on minimizing interruption by providing a choice of sessions;
5. conduct training for all identified dealer personnel
6. have resources work with the Dealer personnel for the period of the install, and to work one on one with Dealer personnel in the use of the solution; and
7. Provide further follow-up via See and Learn videos, available Webinars and the Infomedia Customer Support Center.

3. SOFTWARE: TERMS OF USE

1. The terms of use and licensing of the Software are set out in Infomedia’s standard form, End User License Agreement(s) (“EULA”) (which can be found here) and forms a binding agreement between Infomedia and each Subscriber.
2. Dealer and each Subscriber must comply with these Terms and Conditions together with the terms of the EULA at all times.
3. Without in any way limiting the terms of the EULA, the Dealer hereby warrants that they will (i) comply with all laws, including without limitation, all export control, privacy and disclosure laws when transmitting data to Infomedia or its affiliates (ii) not alter, circumvent, reverse engineer, recompile, decompile, disassemble, resell, pass-through, sub- license, rent, lease, timeshare or re-brand any part of the Software, nor shall it facilitate, induce or permit any other party to do the same.
4. Nothing in this agreement shall be construed as conferring any right, interest or title in the other party’s intellectual property.
5. To the extent of any inconsistency between the EULA and the terms of this agreement, the terms of the EULA will prevail.

4. PRICING AND PAYMENT TERMS

4.1 Infomedia will issue you with invoices on the earlier of a) 90 days from the date the Order Form is signed by you or b) the date that training and installation is completed, once per calendar month for all Software and DMS integration Fees. The initial invoice will be calculated as follows, a) if issued prior to the 15th of a month, the full month and b) if issued after the 15th of the month, 50% of that month.

4.2 Any ad hoc or additional services or programs not a part of the Software shall be directly invoiced by Infomedia and must be paid by Dealer directly to Infomedia upon invoice.

4.3 All Fees exclude any applicable taxes or levies which will be added to each Invoice. If you are required by local law to withholding tax, you will pay the same to the relevant tax authority and provide Infomedia with the relevant tax receipts or tax certificates to be able to claim a tax credit.

4.4 All invoices are due with 14 days of issue.

5. TERM & TERMINATION

5.1 Term & Renewal
This agreement will commence with effect from the Commencement Date and remains in force until the end date of the Committed Term unless validly terminated earlier. Subscribing Dealer agrees to maintain their monthly subscription to the Software as set out in the Order Form for the Committed Term. Upon expiration of the Committed Term, this agreement will automatically renew under the same terms and conditions for periods equal to the previous Committed Term, save that fees may be adjusted by Infomedia at time of renewal to reflect the annual change in the Consumer Price Index (CPI) as published by the United States Bureau of Labor Statistics under the “all items index”.

5.2 Termination
This agreement may only be terminated in the following circumstances:

1. By the Dealer but only at the expiration of the Committed Term by giving at least thirty (30) days’ prior written notice to Infomedia prior to the expiration of the current Committed Term;
2. By Infomedia with immediate effect if the Dealer is in breach of this agreement or if any Subscriber is found to be in breach of the terms of any End User License Agreement;
3. By Infomedia in the event that the supply of the Software infringes, or becomes likely to infringe third party intellectual property; or
4. By Infomedia in the circumstances described in the clause 6 below.

5.3 All rights and liabilities accrued pre-termination shall remain enforceable between the parties.

5.4 The necessary components of this Agreement shall be construed to survive termination to give effect to this provision.

6. THIRD PARTY AGREEMENTS

6.1 Dealer acknowledges and agrees that certain Infomedia products and/or certain functionalities within the Infomedia products may be reliant on (i) the availability of data from Original Equipment Manufacturers (the OE Data) and/or (ii) single or bi-directional integration with third party dealer management systems (DMS Integration). Infomedia obtains the right to use the OE Data and/or the DMS Integration pursuant to separate agreements with OE’s and DMS providers from time to time (Third Party Agreements).

6.2 If any Third Party Agreement terminates for any reason during the Term of this Agreement then Infomedia may unilaterally elect to take one or more of the following steps to prevent infringement of any legal right of any third party: (i) limit the functionality of the Infomedia Products (ii) cease supplying some or all of the Infomedia Products or (iii) terminate this Agreement. Infomedia will use reasonable endeavors to give advanced notice regarding any action taken under this clause and the reasons for the same.

7. WARRANTY

7.1 Infomedia warrants that it will use suitably qualified personnel to render the Installation & Training Services in a professional and timely manner. Infomedia does not warrant that the Software or services will be uninterrupted. Dealer shall ensure that all users of the Software are suitable trained and competent and are made aware of the limitations of any recommendations made by the Software (which are based on user input and use manufacturer recommendations) and that they apply their technical skills and knowledge in reviewing and implementing any recommendations.

7.2 Infomedia represents and warrants to Dealer that it has all necessary ownership, rights and licenses to grant Dealer the license herein free and clear of any and all agreements, liens, adverse claims, encumbrances and interests of any person. Infomedia represents and warrants to Dealer that in all cases where the trademark, copyright or other intellectual property of a third party is used in connection with the Software, Infomedia has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used. Infomedia further represents and warrants to Dealer that the use of the Software as contemplated by this Agreement will not infringe the intellectual property rights of any third party when used in accordance with this Agreement, including the EULA.

7.3 Statutory Warranties. Infomedia liability for  a breach of a condition or warranty implied by law and which cannot be excluded, is limited to the extent possible, at Infomedia’s option, to:

• The supply of the goods or services again;
• The payment of the cost of having the goods or services supplied again or repaired.
• The refund of the fee paid, capped at 1 month.

7.4  Exclusion of all other warranties – To the maximum extent permitted by applicable law, Infomedia, its licensors and authorised suppliers all disclaim any and all other warranties, either expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose with respect to the service, the product information and/or the interface.

8. LIABILITY

8.1 EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, TO THE EXTENT PERMITTED BY LAW, INFOMEDIA’S LIABILITY HEREUNDER SHALL NOT EXCEED IN AGGREGATE AN AMOUNT EQUAL TO THE MONTHLY SOFTWARE AND/OR SERVICE FEES PAID BY THE DEALER FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED.

8.2 IN NO EVENT SHALL INFOMEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, SUPPLIERS OR PARTNERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE OR DATA) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF THE PERFORMANCE OF THE SERVICES, EVEN IF INFOMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. DATA ACCESS

Dealer grants Infomedia permission to access and use for analytical purposes customer service and repair quoting data and other information derived from Dealer’s customers’ multi-point inspection reports (“Subscriber Data”) which have been generated through the Infomedia’s Products for the term of this Agreement. Dealer acknowledges and agrees that Infomedia may send Subscriber Data to the relevant OEM and/or its affiliates and such parties may access and use any Dealer data therein for their business purposes.

10. PRIVACY

In order to provide services to Dealer and Subscribers under this Agreement and in using the Software, Infomedia may collect and use person identifiable information (PII) in accordance with the Infomedia Privacy Policy. Dealer and each Subscriber warrants to Infomedia that if they enter or provide any PII of a third party when using the Software, that they have obtained the consent of that third party to do so.

11. GENERAL

This Agreement, together with the EULA, form the entire agreement between the parties and is governed by the laws of the State of Michigan. Dealer may not assign, novate or transfer this Agreement without the prior written consent of Infomedia and then only if it ensured that the incoming party agrees in writing to the terms and conditions of this Agreement in a manner acceptable to Infomedia. Each party warrants that they enter into this contract freely and without relying on any verbal or documentary representations other than as recorded in the agreements between the parties. This agreement may only be varied in writing between the parties and subject to the signature of an authorized representative of each. Each party bears its own costs in entering into this agreement.

These terms and conditions form part of the SUPERSERVICE ORDER FORM. When the ORDER FORM is accepted by you, these TERMS AND CONDITIONS are accepted and apply to the supply of products and services by Infomedia.

1. DEFINED TERMS

The following capitalized terms are defined terms for the purposes of this agreement:

Committed Term: means the period in months set out in the Order Form that commences on the Software Activation Date.

Commencement Date: The date from which this agreement commences between the parties and is deemed to be the earlier of (i) the date on which the Dealer accepts the Order Form by signature or (ii) the date on which Infomedia start to provide any products or services to the Dealer.

Dealer or ‘you’: Refers to the party specified as the Dealer in the Order Form and extends to include the employees and agents of the Dealer, as context requires.

DMS: Dealer Management System

Infomedia: Infomedia Ltd of Level 5, 155 Clarence Street, Sydney NSW 2000, Australia or its authorized nominee, being IFM America’s Inc of P.O. Box 701904, Plymouth MI 48170, USA.

Installation & Training Services: The installation and training services described in clause 2 below.

Order Form: The order form signed by the Dealer and which sets out the Software and Services.

Software: Infomedia’s proprietary Superservice software.

Software Activation Date: The date on which the Software is made available to the Subscribers.

Subscriber: The individual user(s) of the Software.

2. INSTALLATION & TRAINING SERVICES

2.1 Dealer obligations

1. Upon receipt of a signed Order Form, Infomedia will schedule the Installation & Training Services with the Dealer for a mutually convenient date and time, generally within 30
   days of the Commencement Date.
2. Dealer must complete (and return all fully completed documentation and surveys to Infomedia) the following tasks at least 10 business days prior to the scheduled day on which the onsite portion of the Installation & Training Services are to occur:
   1. populate the Infomedia online survey with all dealer specific information;
   2. manage the DMS to complete all applicable DMS integration requests;
   3. identify the users of the system and make them available for onsite training;
   4. grant Infomedia access to the Dealer premises to conduct onsite training and one on one product assistance;
   5. provide a room for the training to occur which is reasonably sufficiently sized and equipped to facilitate user training;
   6. participate in an Information Technology (“IT”) review session with Infomedia to ensure the Dealer IT Systems meet the recommended minimum IT requirements
   7. ensure all required IT changes prior to the mutually scheduled Installation and Training date, including any wireless or network upgrades that may be required; and
   8. formally acknowledge that the training has been completed at the conclusion of the scheduled installation.
3. In the event of any ad hoc requests or delays by the Dealer, Infomedia may at its option reschedule the Installation and Training Services and charge the Dealer at its then current charges for such delays and travel incurred by Infomedia.

2.2 Infomedia’s obligations

Subject to performance of Dealer’s obligations, Infomedia

1. set up user login credentials prior to onsite installation per the user information;
2. where available, ensure DMS integration has been initialized;
3. conduct a remote IT assessment with the designated IT personnel from the Dealer prior to the installation;
4. schedule onsite training and installation with the Dealer focused on minimizing interruption by providing a choice of sessions;
5. conduct onsite training for all identified dealer personnel
6. have onsite resources work with the Dealer personnel for the period of the install, and to work one on one with Dealer personnel in the use of the solution; and
7. Provide further follow-up via See and Learn videos, available Webinars and the Infomedia Customer Support center.

3. SOFTWARE: TERMS OF USE

1. The terms of use and licensing of the Software are set out in Infomedia’s standard form, End User License Agreement(s) (“EULA”) (which can be found here) and forms a binding agreement between Infomedia and each Subscriber.
2. Dealer and each Subscriber must comply with these Terms and Conditions together with the terms of the EULA at all times.
3. Without in any way limiting the terms of the EULA, the Dealer hereby warrants that they will (i) comply with all laws, including without limitation, all export control, privacy and disclosure laws when transmitting data to Infomedia or its affiliates (ii) not alter, circumvent, reverse engineer, recompile, decompile, disassemble, resell, pass-through, sub- license, rent, lease, timeshare or re-brand any part of the Software, nor shall it facilitate, induce or permit any other party to do the same.
4. Nothing in this agreement shall be construed as conferring any right, interest or title in the other party’s intellectual property.
5. To the extent of any inconsistency between the EULA and the terms of this agreement, the terms of the EULA will prevail.

4. PRICING AND PAYMENT TERMS

4.1 Infomedia will issue you with invoices as follows: (i) on execution of the Order Form, an invoice for a the first month to be held as a deposit and (ii) once per calendar month for all Software and DMS integration Fees, including pro rata for any part periods.

4.2 Any ad hoc or additional services or programs not a part of the Software shall be directly invoiced by Infomedia and must be paid by Dealer directly to Infomedia upon invoice.

4.3 All Fees exclude any applicable taxes or levies which will be added to each Invoice. If you are required by local law to withholding tax, you will pay the same to the relevant tax authority and provide Infomedia with the relevant tax receipts or tax certificates to be able to claim a tax credit.

4.4 All invoices are due with 14 days of issue.

5. TERM & TERMINATION

5.1 Term & Renewal
This agreement is will commence with effect from the Commencement Date and remains in force until the end date of the Committed Term unless validly terminated earlier. Subscribing Dealer agrees to maintain their monthly subscription to the Software as set out in the Order Form for the Committed Term. Upon expiration of the Committed Term, this agreement will automatically renew under the same terms and conditions for periods equal to the previous Committed Term, save that fees may be adjusted by Infomedia at time of renewal to reflect the annual change in the Consumer Price Index (CPI) as published by the United States Bureau of Labor Statistics under the “all items index”.

5.2 Termination
This agreement may only be terminated in the following circumstances:

1. By the Dealer but only at the expiration of the Committed Term by giving at least thirty (30) days’ prior written notice to Infomedia prior to the expiration of the current Committed Term;
2. By Infomedia with immediate effect if the Dealer is in breach of this agreement or if any Subscriber is found to be in breach of the terms of any End User License Agreement;
3. By Infomedia in the event that the supply of the Software infringes, or becomes likely to infringe third party intellectual property; or
4. By Infomedia in the circumstances described in the clause 6 below.

All rights and liabilities accrued pre-termination shall remain enforceable between the parties. The necessary components of this Agreement shall be construed to survive termination to give effect to this provision.

6. THIRD PARTY AGREEMENTS

6.1 Dealer acknowledges and agrees that certain Infomedia products and/or certain functionalities within the Infomedia products may be reliant on (i) the availability of data from Original Equipment Manufacturers (the OE Data) and/or (ii) single or bi-directional integration with third party dealer management systems (DMS Integration). Infomedia obtains the right to use the OE Data and/or the DMS Integration pursuant to separate agreements with OE’s and DMS providers from time to time (Third Party Agreements).

6.3 If any Third Party Agreement terminates for any reason during the Term of this Agreement then Infomedia may unilaterally elect to take one or more of the following steps to prevent infringement of any legal right of any third party: (i) limit the functionality of the Infomedia Products (ii) cease supplying some or all of the Infomedia Products or (iii) terminate this Agreement. Infomedia will use reasonable endeavors to give advanced notice regarding any action taken under this clause and the reasons for the same.

7. WARRANTY

7.1 Infomedia warrants that it will use suitably qualified personnel to render the Installation & Training Services in a professional and timely manner. Infomedia does not warrant that the Software or services will be uninterrupted. Dealer shall ensure that all users of the Software are suitable trained and competent and are made aware of the limitations of any recommendations made by the Software (which are based on user input and use manufacturer recommendations) and that they apply their technical skills and knowledge in reviewing and implementing any recommendations.

7.2 Infomedia represents and warrants to Dealer that it has all necessary ownership, rights and licenses to grant Dealer the license herein free and clear of any and all agreements, liens, adverse claims, encumbrances and interests of any person. Infomedia represents and warrants to Dealer that in all cases where the trademark, copyright or other intellectual property of a third party is used in connection with the Software, Infomedia has the written consent of said third party (through ownership rights or a valid, enforceable license) to use said intellectual property in the manner and to the extent so used and in the jurisdiction used. Infomedia further represents and warrants to Dealer that the use of the Software as contemplated by this Agreement will not infringe the intellectual property rights of any third party when used in accordance with this Agreement, including the EULA.

7.3 Statutory Warranties. Infomedia liability for  a breach of a condition or warranty implied by law and which cannot be excluded, is limited to the extent possible, at Infomedia’s option, to:

• The supply of the goods or services again;
• The payment of the cost of having the goods or services supplied again or repaired.
• The refund of the fee paid, capped at 1 month.

7.4  Exclusion of all other warranties – To the maximum extent permitted by applicable law, Infomedia, its licensors and authorised suppliers all disclaim any and all other warranties, either expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose with respect to the service, the product information and/or the interface.

8. LIABILITY

8.1 EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, TO THE EXTENT PERMITTED BY LAW, INFOMEDIA’S LIABILITY HEREUNDER SHALL NOT EXCEED IN AGGREGATE AN AMOUNT EQUAL TO THE MONTHLY SOFTWARE AND/OR SERVICE FEES PAID BY THE DEALER FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED.

8.2 IN NO EVENT SHALL INFOMEDIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, SUPPLIERS OR PARTNERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE OR DATA) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF THE PERFORMANCE OF THE SERVICES, EVEN IF INFOMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. DATA ACCESS BY HMA

Dealer grants Infomedia permission to provide Hyundai Motors America (HMA) access to customer service and repair quoting data and other information derived from Dealer’s customers’ multi-point inspection reports (“Subscriber Data”) which have been generated through the Infomedia’s Products for the term of this Agreement. Dealer acknowledges and agrees that Infomedia may send Subscriber Data to HMA and/or its affiliates and such parties may access and use any Dealer data therein for their business purposes.

10. PRIVACY

In order to provide services to Dealer and Subscribers under this Agreement and in using the Software, Infomedia may collect and use person identifiable information (PII) in accordance with the Infomedia Privacy Policy. Dealer and each Subscriber warrants to Infomedia that if they enter or provide any PII of a third party when using the Software, that they have obtained the consent of that third party to do so.

11. GENERAL

This Agreement, together with the EULA, form the entire agreement between the parties and is governed by the laws of the State of Michigan. Dealer may not assign, novate or transfer this Agreement without the prior written consent of Infomedia and then only if it ensured that the incoming party agrees in writing to the terms and conditions of this Agreement in a manner acceptable to Infomedia. Each party warrants that they enter into this contract freely and without relying on any verbal or documentary representations other than as recorded in the agreements between the parties. This agreement may only be varied in writing between the parties and subject to the signature of an authorized representative of each. Each party bears its own costs in entering into this agreement.