GS MARKETING, INC

MASTER SERVICES and PRODUCT SPECIFIC

TERMS AND CONDITIONS

PROPRIETARY AND CONFIDENTIAL GS MARKETING, INC.

 

MASTER SERVICES TERMS

Release Date: August 16, 2018

 

These Master Services Terms and Conditions (“Master Terms”) are the general terms and conditions that govern the products and services that GS Marketing, Inc. ("GSM," "Us" or "Our"), provides to its Subscribers and Subscribing Entities (as defined herein, collectively "You", "Your”, “Subscriber”, or “Dealer").  These Terms and Conditions, together with any Product Specific Agreement (“PSA”) referenced below, Exhibits, and Attachments collectively constitute the “Agreement” applicable to Services (defined below) purchased by You. In consideration of the promises, terms and conditions contained in this Agreement, GSM and You agree as follows:

 

  1. Acceptance and Effective Date. The Master Terms and any related PSA Terms shall be effective immediately upon agreement of or accepting the Agreement (“Effective Date”).  You agree to accept the Master Terms and the terms of any related PSA by: (a) clicking to accept or agree to the Agreement, where this option is made available to You by GSM in the user interface for any Service or business form; (b) signing (including electronically) an Enrollment Form (as defined herein) or business form that references this Agreement; or (c) by using or requesting initiation of the Services in writing (collectively “Acceptance”).

 

  1. Terms. The term of this Agreement shall be from the Effective Date set forth above and shall continue until the completion of all Services/Deliverables set forth in any Enrollment Form (as defined herein) (”Term”), unless terminated as set forth in this Agreement.

 

  1. Services and Grant of License from GSM.    Subject to the terms and conditions of this Agreement, during the Term, GSM shall provide You and Your Subscribing Entities (defined below) certain non-exclusive automotive marketing solution products and services, which may include direct mail marketing, e-mail marketing, mobile applications, data integration and management, data hygiene and optimization, audience targeting and direct marketing, digital services, advertising, website creation and management, internet or online services, telephone services, managed services, software services, analysis and reporting, or other similar or related services (“Services”), as described in one or more quotes, proposals, order forms, fulfillment forms, statements of work (“SOW”), change orders, product agreements, product definition websites, billing or enrollment forms prepared or provided by GSM (collectively “Enrollment Form”) or through the selection of any additional Services by You.  To the extent of any inconsistency between this Agreement and the Enrollment Form, this Agreement will control.  You agree to provide true, accurate, current, and complete information in any Enrollment Form, and update such information in the event of any changes. Subject to the terms and conditions of this Agreement, GSM grants to You for the Term a nonexclusive, nontransferable, non-sublicenseable, limited right and license, where applicable, to use the Services to promote and service Your Subscribing Entities. All rights not expressly granted to You are reserved by GSM. “Subscribing Entities” includes You and any and all separate businesses, automotive dealerships, business entities, designees, or “rooftops” which are subsidiaries, affiliates or related entities of You and listed on any Enrollment Form, Exhibit to the Enrollment Form, SOW or this Agreement (which list is made a part of this Agreement).  The rights and license granted herein may not be shared with or extended to any (i) Subscribing Entities, third parties or other business entities, sites, franchises, or locations not specified in the relevant Enrollment Form, (ii) person under the age of 18 years old, or (iii) automated process or method. Any custom development efforts by GSM related to the Services shall be encompassed by the terms and conditions in this Agreement, which development efforts at GSM’s discretion may be set forth in one or more SOW or Enrollment Form. Each shall be separately executed and when so executed is incorporated by reference and becomes a part of this Agreement. Terms and conditions of this Agreement shall supersede any contrary terms and conditions of any Enrollment Form. Any custom work for You, whether or not under a formal SOW, shall be provided at GSM’s then current billing rate for such work. GSM may modify or substitute any of the Services from time to time in accordance with its standard practices upon fifteen (15) days’ notice to You, prior to the Service changes, which can be delivered via electronic communication (email, dealer portal, etc.). The rights granted by GSM to You herein expressly prohibit You from disassembling, decompiling or reverse engineering any part of the Services, or related data or content. In addition, You shall: (i) use the Services only for purposes that are permitted by this Agreement and any applicable law, regulation or guidelines in the relevant jurisdictions; (ii) not access (or attempt to access) any of the Services by any means other than through the interface that is provided by Us; (iii) not access (or attempt to access) any portion of the Services or the content included therein through any automated means (including use of scripts or web crawlers); (iv) not engage in any activity that interferes with or disrupts the Services; (v) not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose;  (vi) not allow any third parties to view or copy Our Services or software, including source code, object code or any other portion of Our software, without Our prior written consent; (vii) not share passwords or access codes; and (viii) not allow unauthorized exhibition, presentation, recording, storage or capture of any GSM Intellectual Property (defined herein), Services or its copyrighted content. In addition, You are solely responsible for, and GSM has no responsibility to You, Your Subscribing Entities, or to any third party for: (x) any breach by You of Your obligations under this Agreement and for the consequences of any such breach; (y) maintaining the confidentiality of passwords associated with any account You use to access the Services; (z) compliance with any law, rule or regulation, including, but not limited to, any original equipment manufacturer (“OEM”) (or similar) compliance rules and guidelines related to the Services or use of the Services. You shall regularly review Your creative and the Services provided herein to ensure it meets any legal and OEM compliance standards, and You shall be solely liable for any fines or other penalties imposed by any third party relating to any non-compliance. GSM reserves the right to provide business or Service information, confidential information, or Subscriber Data (defined herein) to any Partner (defined herein), OEM or OEM Independent Distributor with which GSM has an agreement.  GSM does not give legal advice, and no part of the Services provided by Us should be construed as legal advice. Accordingly, You shall consult Your own legal advisor for legal advice relating to the Services (including, but not limited to, any disclaimers, privacy policy, forms, terms and conditions or other items that GSM may provide as part of the Services). GSM reserves the right to terminate, change, suspend, or discontinue Services at its sole discretion, with the effect of termination as described herein.

 

  1. Responsibilities. You acknowledge and understand that part of the Services may include, among other things, the creation and placement of graphics, copy, postal addressing, advertisements and otherwise by Us on Your behalf.  You are solely responsible for the following:
    1. Budgets. Campaigns, budget allocation and management (creative or targets), whether generated by or for You; and features of any advertised services and products (“Features”) are Your responsibility. GSM or its third party suppliers from whom GSM subcontracts Services, purchases, licenses, or subscribes to certain programs, products, or services (“Partners”) may reject or remove any Service for any or no reason.
    2. Data. THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA. You understand and agree that some or all of the data provided by You and Your Subscribing Entities including but not limited to, customer information, inventory, sales and service data, billing or contract details and other extracted information and data (“Subscriber Data”) from You or Your data management system, including any dealer management system or OEM customer database (collectively “DMS”) may be nonpublic personal information (“NPI”) including personally identifiable information (“PII”) capable of identifying a natural person, which may include, but is not limited to; name, address, telephone number, email address, social security number, driver’s license number, state issued identification card number, and/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 other such NPI, and as such term is defined under the Gramm-Leach-Bliley Act (“GLBA”), as codified at 15 U.S.C. 6801, et seq., or under the United States Federal Trade Commission’s (“FTC”) Privacy Rule, as codified at 16 C.F.R. 313, et seq. You represent that You have complied (and will comply) with all federal, state and local laws and regulations regarding the use, protection, security, disclosure, and sharing of the Subscriber Data, including any NPI or other nonpublic personal information, and the use contemplated by this Agreement is permissible, and not in violation of any such privacy laws, or any of Your privacy policies. You understand that GSM can extract the Subscriber Data as needed. You agree to provide all necessary and reasonable connections for GSM to extract the Subscriber Data and GSM is relieved of any obligation under this Agreement or under any Services requested to the extent such obligation cannot be fulfilled because You have not provided such connection to extract Subscriber Data.  You represent and warrant that You hold and hereby grant GSM and its Partners all applicable rights, consents, permissions or otherwise as required (including without limitation any copyright, trademark, patent, publicity or other rights) for GSM and Partners to provide, use, manage, and store Subscriber Data (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of creative or targets) in connection with this Agreement ("Use").  You agree to indemnify, defend, and hold harmless GSM from any and all claims arising from GSM’s Use of the Subscriber Data in accordance with this Agreement. You agree that GSM is not responsible for any breaches in security of Subscriber Data that results, in whole or in part, from You having inadequate security precautions in place. GSM shall use commercially reasonable efforts to maintain the confidentiality of the Subscriber Data, and shall not disclose or use the Subscriber Data other than as agreed to herein. GSM shall employ commercially reasonable security measures to protect the privacy of each customer’s and consumer’s NPI that is embedded within any Subscriber Data consistent with the requirements of the GLBA and regulations promulgated by the FTC that seek to implement GLBA’s relevant requirements regarding security of NPI. GSM shall reasonably cooperate with You in verifying GSM’s compliance with this representation, provided that (1) You request the verification steps to be employed in reasonable detail in writing; (2) such request is made no more often than once a year and no less than fifteen (15) business days before the verification steps are to be used; (3) such proposed verification steps are those reasonably designed to be effective in verifying GSM’s compliance with the requirements of this Agreement in the least intrusive way; (4) You shall indemnify GSM for any damage to the computer systems of either GSM or any of its subcontractors or Partners resulting from You employing such verification steps; (5) You shall, to the extent permitted by law, keep the results and details of such verification steps taken confidential from all third parties, but shall share those results with GSM; and (6) You shall comply with each of the reasonable workplace and security rules imposed by GSM that are relevant to the verification step taken and the location where the test is conducted.  You understand that GSM respects the privacy of all of our customers and as such, we do not compare customer lists.  As a result, some consumers may receive duplication communications from more than one store.
    3. Policies. Use of the Services is subject to all applicable policies of both GSM and its Partners which may include, without limitation, any publisher’s editorial guidelines, privacy policies, trademark guidelines, postal service regulations and ad specification requirements, including but not limited to, requirements of any search engines or third party websites in order to advertise on their networks (collectively, "Policies"). Policies may be modified at any time by GSM or its Partners, and GSM may modify ads to comply with any Policies in its sole discretion.
    4. Content. You are solely responsible for any information (including, but not limited to, any Subscriber Data and other information and content) provided by You or any third party provider or supplier created, transmitted or displayed on or through the Services including any images, video, data, text, audio, graphics, trademarks, logos, sounds, music, website content, landing pages, creative links, and artwork (collectively “Content”).  GSM reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service in Our sole discretion. GSM is not responsible for any errors (including, but not limited to any data, pricing, offer, disclaimer, photo and other errors or omissions) that may occur as a result of the Subscriber Data extractions, the Services, and Content. You are solely responsible for any communication or other contact between You and Your customers identified through Your use of the Services.  You agree that GSM is not responsible for any loss or damage of any sort incurred as the result of any contact between You and Your customers or potential customers, including but not limited to any contact resulting from Your use of the Services, and GSM shall not be liable to You or Your Customers for any claims arising from such contact. 

 

  1. Prohibited Uses. Services may not be used (a) to send messages featuring content that violates any law, or that is sent in violation of any law, (b) to send messages promoting or containing material that is unsuitable for children 13 years or younger, promoting or featuring pornographic material, or promoting pornographic websites/services, (c)  to send messages that contain falsified or misleading information including but not limited to routing information, a return address that is either invalid or belongs to a third party and is used without permission, a misleading subject line and/or body copy, or promote any fraudulent scheme, or (d) with mailing lists or addressees not obtained or used in compliance with applicable law. Removal requests from mailing list members must be honored immediately by You upon receipt and any failure to do so is in violation of Federal law and is prohibited. Removal requests include but are not limited to unsubscribe requests, bounces, and unsolicited email complaints. You shall not authorize any party to advertise anything illegal or engage in any illegal or fraudulent business practice.  You must not transmit any worms or viruses or any code of a destructive nature.  You represent and warrant that (y) all Your information is complete, correct, current and is maintained by You; and (z) any Use hereunder and Your creative, Subscriber Data, targets, and Services provided by Us for Your behalf and Your features will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights).  You shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions; (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect GSM information from any Services or property except as expressly permitted by GSM; or (c) advertise anything illegal or engage in any illegal or fraudulent business practice.  Your login, username and password may only be used by one person; a single login shared by multiple people is not permitted.   You are responsible for maintaining the security of your account and password.  GSM’s written authorization is required prior to granting permission to any third party supplier to access your account.  GSM will not authorize permissions to any GSM competitor.

 

  1. Grant of Rights to GSM. You understand and agree that GSM may use third party service providers to perform Services for You under this Agreement. You authorize GSM (and its Partners, OEM, OEM Independent Distributor as applicable) to (A) access Your DMS data and website, by any means necessary, including but not limited to modem, internet and/or network, with all administrative rights as often as it reasonably deems necessary to extract and copy Subscriber Data and use, copy, host and adapt such Subscriber Data, or as otherwise necessary to provide the Services to You; and (B) develop databases, compilations and statistical reports from such Subscriber Data that may be used by Us or Our Partners and provided to You. By agreeing to this Agreement, You are providing your DMS provider with your written consent to permit GSM (and its Partner(s)) to access Subscriber Data on Your DMS. You hereby grant GSM and its Partners the right to use the Subscriber Data as necessary to provide Services to You and Your Subscribing Entities. GSM agrees that it will contractually bind any such third party service provider to maintain the confidentiality of the Subscriber Data, and to use it only for the purpose of providing the applicable service to GSM. Notwithstanding anything to the contrary in this Agreement, GSM and its Partners may de-identify and aggregate any Subscriber Data and use such anonymous Subscriber Data in perpetuity for any reasonable business purpose, and without restriction. In addition, by submitting, posting or displaying any Content, You grant to Us an irrevocable, worldwide, royalty-free, and non-exclusive license to (i) reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such content for the sole purpose of enabling Us to display, distribute and promote You and Your Subscribing Entities, and (ii) make such content available to other companies, organizations or individuals with whom GSM has relationships for the provision of the Services (including the transmission or distribution of the content over various public networks and in various media). You acknowledge that GSM has the right (but not the obligation) in its sole discretion to refuse or remove any Content. You are solely responsible for the Content that You license to GSM under this Agreement and You agree to: (a) provide only Content that You have the legal right to make available; (b) not provide any Content which infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (c) not use or transfer any Content to GSM which contains unlawful material; and (d) ensure that all Content transferred to GSM, and Your DMS is virus-free, and contains no harmful code. For the purposes of providing any Services, You hereby grant to GSM the right to use Your brand names (and those of Your Subscribing Entities); any applicable OEM franchise and product names, trademarks, and service marks; and any trademarks, service marks, videos, images, content, domain names, logos and/or trade names of You and Your Subscribing Entities, and those of Your products and services.  In addition, You grant to Us a nonexclusive, nontransferable, revocable, non-sublicensable, royalty-free worldwide right and license to use, display, transmit and broadcast Your name or mark, and that of Your Subscribing Entities, in a general listing of Our customers or otherwise in Our advertising and marketing materials distributed to Our customers and potential customers. For the purpose of providing any Services, You represent, warrant and covenant that You have all the rights, power and authority necessary to provide all of the grants, rights and licenses provided to GSM in this Agreement. Subscriber-provided assets must be provided to GSM in standard formats as required for the product as defined by GSM. Content/assets in non-standard formats will be considered custom work and may require a custom work quote. All copy written materials, disclaimers and pricing content must be provided electronically to GSM. GSM will not make edits or modifications to text received. No default or example templates will be provided for legal text or disclaimers. Subscriber represents and warrants that OEM-provided Content/assets are the property of the Subscriber or authorized for use by the Subscriber.

 

  1. Ownership of Proprietary Rights. Subscriber may have feedback, suggestions, or comments that may be incorporated into the licensed Services and related intellectual property. GSM and its licensors may, in their sole discretion, decide to incorporate some or all of Subscriber’s feedback, suggestions, or comments into the licensed Services or related intellectual property. GSM, GSM’s Partners or licensors shall own exclusively and in perpetuity all worldwide right, title and interest in and to the licensed Services, including any and all versions of the licensed Services and related intellectual property, including enhancements, modifications, upgrades, customizations or derivative works of the licensed Services, including any enhancements suggested by Subscriber. Subscriber hereby assigns all of their right, title and interest in any such enhancements suggested to GSM, GSM’s Partners or licensors. The licensed Services, and any furnished work or materials created in the delivery of the licensed Services, are not considered “work for hire” under copyright laws. GSM, GSM’s Partners or licensors owns the licensed Services, and the results provided to Subscriber in connection with this Agreement.

 

  1. Service Activation. Billing of the monthly or other fees for the Services as outlined on the Enrollment Form, SOW, PSA or as otherwise agreed will commence as of the Effective Date or Service Activation Date (“Service Activation”).  Service Activation shall be defined as the scheduled date GSM provides to You during the onboarding or enrollment process and at which point the program becomes active, live or otherwise available to the public.    

 

  1. Payment of Fees. Upon the Effective Date, You shall pay GSM any training, set-up, development, implementation, and any other one-time or nonrecurring fees outlined in the Enrollment Form.  You are solely responsible to Us for any fees, costs or other expenses that may be charged by Us related to any selections made by You or Your Subscribing Entities.  You shall promptly pay Us the fees outlined in the Enrollment Form and/or SOW on a monthly basis. Unless specified differently in a PSA, GSM will submit to You monthly invoices for each month’s Services at the end of the month for which Services are rendered. You agree that GSM will notice and bill You by e-mail posting, by mail invoicing or, when authorized, by charging Dealership’s credit card.  Unless stated otherwise in the Enrollment Form and/or SOW, all payments are due thirty (30) days from date of invoice, and all payments are in United States dollars.  Payments shall be submitted to: GS Marketing, P.O. Box 301102, Dallas, TX 75303-1102. GSM does not prorate invoices unless specified in a PSA. GSM may change the fees, cost or price for any Service at any time with fifteen (15) days’ notice to You, which notice can be electronically submitted and as defined herein.  GSM may charge interest equal to the lesser of (i) 1.5% per month (18% per year) or (ii) the maximum allowed by law, on any amount remaining unpaid after the payment due date.  In certain jurisdictions, the Services are taxable, and You agree that You are solely responsible for the payment of all applicable taxes, including but not limited to sales or use taxes.  In jurisdictions where GSM is required by law, GSM will collect these taxes from You as appropriate by adding them to Your invoice and remitting them to the appropriate tax agency.  If for some reason GSM does not collect these taxes from You and it is later determined that such taxes were due and should have been collected, GSM will present You a bill for such taxes, You agree to pay such taxes to GSM, and GSM will remit them to the appropriate tax agency. 

 

  1. Termination and Effect of Termination.  Either party may terminate this Agreement and/or terminate or deactivate any Services: (A) if the other party is in breach of any material provision of this Agreement and fails to cure such breach within thirty (30) days of written notice by the non-breaching party; or (B) in the event: (y) any assignment is made by the other party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of the other party's property, or (z) the other party files a voluntary petition under federal bankruptcy laws or similar state statutes or such a petition is filed against the other party and is not dismissed within thirty (30) days. GSM may immediately terminate this Agreement and/or immediately terminate or deactivate Your account upon the occurrence of the following: (i) the use of any Services by You in a manner that is illegal, fraudulent, or otherwise in violation of the terms of this Agreement; or (ii) Your failure to pay any invoiced fees within thirty (30) days after the date of the invoice. You acknowledge and agree that if GSM disables access to Your account, You may be prevented from accessing the Services, Your account details or any data or other Content which is contained in your account.  You acknowledge and agree that GSM will not be liable in any way for any inconvenience, delay, damages, losses or other claims related to disabling Your access to Your account.  Except as otherwise indicated in an applicable PSA, either party may terminate this Agreement without cause upon thirty (30) days written notice to the other party prior to the expiration of any Initial Term or Renewal Term. To be effective, any termination notice from You must be sent (i) in writing; (ii) executed by a Subscriber Dealer Principal, General Manager, Business Owner or Corporate Officer; (iii) sent via certified mail or email; and (iv) acknowledged by GSM.  If sent via certified mail, must be sent pursuant to the requirements contained herein regarding legal notices.  If sent via email, must be (i) sent to Your Account Executive’s email address; and (ii) as instructed on any Enrollment or Cancellation Form.  A Termination notice shall not be effective until You receive, from GSM, a written verification acknowledging receipt of Your Termination notice, which acknowledgement may be by email. You acknowledge and agree that You are responsible for ensuring compliance by Your Subscribing Entities with the provisions of this Agreement and that any breach of a provision of this Agreement by any of Your Subscribing Entities will be deemed to be a breach by You of Your obligations hereunder.  Upon termination of this Agreement, GSM shall promptly deactivate all Services, and any and all licenses granted by GSM hereunder shall terminate. Termination shall not relieve You of Your liability to GSM for all fees accrued and owed, and any fees due for the remainder of the PSA Term shall become immediately due and payable.  You agree and acknowledge that You will remain liable to GSM for the balance of any and all fees due for the remaining term of the Agreement upon early termination of the Agreement.  You shall reimburse Us for any reasonable attorney’s fees and related costs GSM incurs in collecting any outstanding fees owed to Us by You.  Upon termination of this Agreement, You shall immediately discontinue use of all Services, and each party shall upon request deliver to the other (or destroy) all Confidential Information of the other that it may have in its possession or within its control, except that GSM may retain copies of such materials of You and Your Subscribing Entities on its systems for archival purposes.   You shall promptly return to GSM all of the materials and other property related to the Services, regardless of which party of their agents prepared it, and shall retain no copies, extracts or other reproduction in whole or in part thereof, as well as, discontinue marketing the Services.  In the event termination by GSM is a breach of this Agreement, your sole remedy for such breach and any related liability shall be a refund of amounts related to affected Services. Upon expiration or termination of this Agreement for any reason, those provisions of the Agreement that by their nature are intended to survive will survive in accordance with their terms, including, but not limited to, Section 4, 5, 6, 8, 9, 10,  and 11 through 15.

 

  1. Additional Terms.  You shall delegate an individual as the initial authorized billing contact and administrator for the Services for all Your Subscribing Entities, and that individual represents and warrants that he or she is entitled and authorized to enter into this Agreement and any specific Enrollment Form subscription on behalf of You and Your Subscribing Entities and is authorized to bind You and each of Your Subscribing Entities as outlined herein.  The Services GSM will be providing to You and Your Subscribing Entities, among other things, allow You to designate additional administrators for the Services, thereby granting certain rights and authorizations relating to, among other things, selection of, and preferences for, Services and billing.  GSM may, from time to time, offer You and Your Subscribing Entities the ability to purchase various additional products or services from Us through the Services, or otherwise.  You or Your Subscribing Entities agree to accept all applicable terms and conditions as a prerequisite to Your use of any products or Services via a click-through, or as published on GSM’s website (“GSM Site”) at com/ServiceTerms.html.  You agree that all Services provided by Us shall be subject to this Agreement as the same may be updated from time to time, and published on GSM Site. You also agree that you will undertake the obligation to keep informed of any terms published by GSM on the GSM Site and that such terms shall modify, supplement and amend this Agreement.  GSM may modify, supplement and amend this Agreement at anytime, at Our sole discretion and shall provide notice to You under this Agreement by: (i) posting a notice on the GSM Site; or (ii) sending a message to the email address then associated with Your account. Notices we provide by posting on the GSM Site will be effective immediately upon posting.  Notices GSM provides by email will be effective when we send the email. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your account when GSM sends the email, whether or not You actually receive the email. To give Us notice under this Agreement, You must contact GSM as follows: by personal delivery, overnight courier or registered or certified mail to GS Marketing, Inc. 1345 Enclave Parkway, Houston, TX 77077. Notices provided by personal delivery or overnight courier will be effective one business day after they are received. Notices provided by registered or certified mail will be effective three business days after they are received. Questions about the Master Terms or any Product Specific Terms should be emailed to contracts@gsmarketing.com.  All communications and notices to be made or given pursuant to this Agreement must be in the English language. You agree that to the extent these terms are updated on the GSM Site and referenced on the GSM Site with respect to the provision of any Services by GSM to you, that such terms shall apply to the provision of such Services.  Neither GSM nor its agents or Partners will be in breach of this Agreement when, for causes beyond its control, GSM is unable to perform, in whole or in part, any of its obligations under this Agreement.  Such causes shall include, but are not limited to, labor disputes, government regulations or controls, fire, flood, or other casualty, inability to maintain its services, technical failure, economic conditions, acts of God, insurrection, or any other cause not within reasonable control of GSM or its agents, Partners.  Verbal, physical, written or other abuse (including threats of abuse or retribution) of any GS Marketing, Inc. customer, employee, Partner, member, or officer will result in immediate account termination.

 

  1. Confidential Information; Compliance. Each party acknowledges that during the term of this Agreement it may receive information from the other party that is proprietary to, or confidential to, the other party, including, but not limited to, financial information, product plans, business plans, trade secrets, technology diagrams, designs, drawings, sketches, flow charts, or any other proprietary information, whether transmitted orally, in writing, or by any other media ("Confidential Information"), which constitutes valuable trade secrets.  Without limiting the foregoing, GSM Confidential Information includes this Agreement and the terms and conditions herein as well as the GSM Intellectual Property (as defined herein).  Both parties shall: (i) use Confidential Information solely in accordance with the provisions of this Agreement; and (ii) not disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party, excluding GSM Partners, without the other party's prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own Confidential Information, but in no event shall a party use less than reasonable care.  However, the confidentiality obligations of the parties shall not extend to information that: (i) is, as of the time of its disclosure or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was rightfully known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party; or (v) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the disclosing party shall provide prompt written notice to the other party prior to such disclosure (provided such notice is allowed by law and not otherwise restricted), so that such party may seek a protective order or other appropriate remedy. In the event that a protective order or other appropriate remedy is not obtained, the disclosing party agrees to disclose only that portion of the Confidential Information that is required.  In the event of actual or threatened breach of the provisions of this Section regarding Confidential Information, both parties agree that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages. To the extent applicable to it, each party shall at all times during the Term comply in all material respects with all laws, legislation, rules, regulations, governmental requirements and industry standards (including the Gramm-Leach-Bliley Act) applicable to such party with respect to the performance by each party of its obligations hereunder.  Without limiting the foregoing, each party will keep all nonpublic personal information received or obtained from the other party confidential, and shall use such nonpublic personal information only for the reasonable purposes of this Agreement for which the party delivered the nonpublic personal information.  Moreover, each party will implement and shall use administrative, electronic, technical and physical safeguards and procedures designed to protect the security, confidentiality and integrity of, to prevent unauthorized access to or use of, and to ensure the proper disposal of, nonpublic personal information.

 

  1. Intellectual Property. GSM owns or licenses, and reserves all rights to, all GSM Intellectual Property connected with or related to the Services.  This Agreement only provides you a limited use or grant of license, and nothing contained in this Agreement shall be construed as granting You any ownership interest in and to any GSM Intellectual Property.  "GSM Intellectual Property" means, without limitation, all concepts, inventions (whether or not protected under patent laws), works of authorship, moral rights, mask works, software, trademarks, trade names, trade dress, trade secrets, publicity rights, copyrights, know-how, ideas, compilations, content, or features, whether or not fixed in a tangible medium of expression or protected under trade secret laws, all Services or any portions thereof including the creative, design, look and feel, format, graphics, custom work, logos or graphics created by Us or Our Partners or licensees created for You or Your Subscribing Entities pursuant to any special request or scope or SOW associated with any Services, as well as all data GSM determines, in its sole discretion, to maintain relating to the use of the Services, including, but not limited to, database segmentation, response rates, views per day, and other types of statistics available to Us relating to Your Services.  Neither You nor Your Subscribing Entities may modify, rent, lease, publish, retransmit, loan, sell, distribute, license, commercially exploit, or create derivative works based on any GSM Intellectual Property, either in whole or in part, whether such GSM Intellectual Property is owned or licensed by Us, unless You or Your Subscribing Entities, as applicable, have been specifically notified that You may do so by Us in writing.  Except as otherwise set forth in this Agreement, You retain copyright and any other rights You already hold in any content and Subscriber Data created or provided by You or Your Subscribing Entities.

 

  1. Ownership of Intellectual Property or Proprietary Rights. You may have feedback, suggestions, or comments that may be incorporated into the Services and related intellectual property. GSM and its licensors may, in their sole discretion, decide to incorporate some or all of Your feedback, suggestions, or comments into the Services or related intellectual property. GSM and its licensors shall own exclusively and in perpetuity all worldwide right, title and interest in and to the Services, including any and all versions of the Services and related intellectual property, including enhancements, modifications, upgrades, customizations or derivative works of the Services, including any enhancements suggested by You. You hereby assigns all of their right, title and interest in any such enhancements suggested to GSM or its licensors. You will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this paragraph. The Services, and any furnished work or materials created in the delivery of the Services, are not considered “work for hire” under copyright laws. GSM owns the Services, and the results provided to You in connection with this Agreement.

 

  1. Disclaimer and Limitation of Liability.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES BY YOU AND YOUR SUBSCRIBING ENTITIES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  GSM DOES NOT WARRANT THAT ANY SERVICES DELIVERED HEREUNDER WILL BE ERROR-FREE. IN CONNECTION WITH ALL SERVICES PROVIDED, GSM DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOUR SOLE REMEDY FOR OUR BREACH OF ANY WARRANTIES HEREUNDER IS AS SET FORTH HEREIN. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS, INTERRUPTION OF BUSINESS, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL GSM BE LIABLE TO YOU IN THE AGGREGATE FOR ANY AMOUNT IN EXCESS OF THE ONE-TIME FEES AND MONTHLY FEES ACTUALLY PAID BY YOU TO US FOR AFFECTED SERVICES PROVIDED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.  GSM WILL NOT BE LIABLE TO YOU FOR INTERRUPTIONS OR DEGRADATIONS OF SERVICES DUE TO LACK OF INTERNET CAPACITY OR EQUIPMENT LIMITATIONS, MODIFICATIONS, REPAIRS, UPGRADES OR RELOCATIONS, OR FOR INTERCEPTION OF DATA THROUGH THE INTERNET BY THIRD PARTIES. GSM HAS NO CONTROL OVER, AND WILL NOT BE LIABLE TO YOU FOR, THE ACTIONS OF INTERNET SYSTEMS, SERVICE PROVIDERS, ACTS OF GOD, CHANGES IN GOVERNMENT REGULATIONS, TECHNICAL FAILURE, TERRORISM, MATERIAL OR LABOR SHORTAGES, OR ANY OTHER FORCE MAJEURE EVENTS NOT WITHIN THE REASONABLE CONTROL OF GSM, THAT CREATE DELAYS IN OR INTERRUPTIONS OF SERVICES.  THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH THE PARTIES' OBLIGATION UNDER THIS AGREEMENT AND THAT GSM WOULD NOT BE ABLE TO PROVIDE THE SERVICES, ON AN ECONOMIC BASIS, WITHOUT THE BENEFIT OF THE FOREGOING LIMITATION OF LIABILITY AND HAS SET ITS FEES AND OTHER PRICES ACCORDINGLY.  THE APPLICATION OF ANY OF THESE PROVISIONS MAY BE CONTRARY TO THE LAWS OF YOUR STATE OF RESIDENCE; IN SUCH CASE, ONLY THOSE PROVISIONS LAWFUL IN YOUR STATE SHALL APPLY TO YOU.

 

  1. Indemnification. You shall indemnify, defend and hold harmless GSM, its Partners, agents, affiliates, related entities, licensors and its and their respective officers, directors, trustees, employees and agents, from and against any claims, suits, judgments, proceedings, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and other reasonable costs and expenses related thereto) arising out of or relating to Your subscription for and purchase of the Services including use, targets, access, ad creative and Features and Your breach of any provision of this Agreement. Partners shall be deemed intended third party beneficiaries of the above disclaimers, limitation of liability, and indemnity.

 

  1. General Provisions. The Parties hereto are independent contractors.  This Agreement shall not be deemed to render the Parties hereto joint ventures or partners or to create any similar relationship.  Each party represents and warrants that it has the requisite authority and power to enter into and enforce this Agreement and that no consent of any other person or entity is required by it to grant any rights granted hereunder other than consents that have been obtained and are in effect.  This Agreement shall be binding upon the parties' respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party; provided GSM may assign its rights and obligations under this Agreement without Your consent: (i) to an affiliate or related entity, or (ii) incident to the transfer of all or substantially all or portion of its business.  This Agreement, together with any applicable PSA and Additional Terms constitutes the entire Agreement between You and Us relating to the Services.  This Agreement supersedes all prior or contemporaneous agreements between the parties concerning the subject matter of this Agreement.  No modification, amendment, supplement to, or waiver of this Agreement hereunder shall be binding upon the parties unless made in writing and executed by GSM, which can be posted to the GSM Site.  No terms, provisions or conditions of any purchase order or other business form issued by You relating to this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Us to object to such terms, provisions or conditions.  No breach of any provision of this Agreement can be waived unless such waiver is in writing and signed by the waiving party.  Waiver by a party or performance of any provision of this Agreement shall not invalidate this Agreement, nor shall it be deemed to be a waiver by such party of any other provision.  If any portion of this Agreement is held to be invalid, illegal or unenforceable, that portion shall be severed from this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall be enforced to the extent permitted by law consistent with the intent of the parties.  This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Agreement, or as an inducement to enter into this Agreement (collectively “Claims”), shall be governed by the internal laws of the State of Texas, without regard to its conflict of law provisions. The parties agree that the exclusive venue and jurisdiction for the resolution of Claims shall be in courts having jurisdiction in Harris County, Texas, and the parties hereby agree to submit to the personal jurisdiction of those courts, and waive any objection to venue. Any  Claim against Us or Our Partners, or subcontractors must be made within one year after such Claim accrued or arose, or shall be deemed waived. 

 

PRODUCT SPECIFIC AGREEMENTS

 

These Product Specific Agreements and Related Additional Terms supplement and are a part of the terms and conditions of the Agreement and are made available to You between GSM and You.  The Terms and Conditions are incorporated herein, and all capitalized terms in any Product Specific Agreement shall have the same definitions as set forth in the Master Terms.  In the event of any inconsistency between these Product Specific Terms and the Master Terms or any Enrollment Form, these Product Specific Terms shall govern and control.  In all other respects, the Master Terms are and shall remain in full force and effective.

GSM will provide to You the selected Services as described on any Enrollment Form(s). 

  

Customer Retention Service Solutions and Automotive Total Marketing™ (“atom”), atom Quote and AutoBook

Release Date: August 16, 2018

 

  1. Term and Termination:
    1. Month-to-Month Enrollment Form Agreements: Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. The Initial Term shall be for thirty (30) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    2. 12 Month Enrollment Form Agreements - Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. Initial Term of the Service shall be for twelve (12) months and shall be automatically renewed for successive twelve (12) month terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    3. 6 Month Enrollment Form Agreements - Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. Initial Term of the Service shall be for six (6) months and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
  2. Service Acceptance and Activation: Services will be deemed accepted upon Service Activation or use by You and shall be billed until terminated by You pursuant to the Master Terms.
  3. Invoicing and Payment of Fees:
    1. All accounts are subject to fees as agreed to in any Enrollment Form. Selected additional Services or Service changes will be subject to additional fees.
    2. Fees are billed by calendar month and invoiced after services are rendered.
    3. Prorating of fees is not permissible unless specified differently on any Enrollment Form.
    4. The Greenlight OLC usage fees will be added to the bill for the following billing period.
    5. Payment of Fees are as described in the Master Terms.
  4. Product Specific Terms:
    1. For a complete list of enabled notifications by service plan and DMS type, see the applicable product information form.
    2. You are responsible for all physical connections and costs to access this service. GSM may, at its sole option and for an additional fee, assist You in setting up Your physical connection equipment and software.
    3. You shall activate the service by agreeing to the End User License Agreement (“EULA”) on the activation site.
    4. You acknowledge that as part of the Services You and Your Subscribing Entities GSM may receive use of and access to Your Subscriber Data, as well as other services relating to data, all of which have additional PSA Terms as described herein as DMS Integration.
    5. You acknowledge that as part of the Services You and Your Subscribing Entities may receive use of and access to certain tracking phone numbers, as well as other services relating to such numbers, all of which have additional PSA Terms as described herein as the Telephone Services PSA.
    6. Automated customer notification calls are unlimited in volume. Campaign Manager call minutes (i.e., safety, informational and legally authorized telemarketing calls) are limited monthly based on service plan, and all call content is regulated by FTC pre-recorded calling regulations.
    7. The account will provide connection access to the Automatic Messaging Service (a prerecorded customer notification program consisting of triggered variable content electronic and print vehicle service related communications to vehicle owners, based on DMS related customer transactions and owner-specific vehicle service history information). All accounts are subject to Programming Fees, Monthly Service Fees and/or Usage Fees to GSM when exceeding the call limits established by each service level, agreed to herein. Selected additional services will be subject to additional fees.
    8. You will be provided connection access to the Greenlight Management Console and its customers will be provided access to the Greenlight Portal customer site to view reward points. (Greenlight is a vehicle owner loyalty program consisting of rewards accrued by customers which can be applied to dealer-specific service and sales discounts offered to Greenlight participating members.) These sites will be maintained by GSM.
    9. Services may use communication through voice, public electronic mail (email), Telnet, FTP (File Transfer Protocol), and/or other existing or in development services or replacements thereof to which You are or may be connected and as mutually agreed by You and GSM.
    10. Your correspondence or business dealings with customers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such customers. You agree that GSM shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such customers on the Services. You shall cause all communications initiated to its customers through the Service to comply with all applicable laws and regulations, including without limitation those promulgated by the U.S. Federal Trade Commission and the U.S. Federal Communications Commission in connection with telemarketing and the prevention of unwanted phone calls, except to the extent such communications are templates provided by GMS through the Services, and/or such communications are made to customers based on lists provided by GSM.

Direct Mail Service Solutions and atomDirect

Release Date: August 16, 2018

 

  1. Term and Termination:
    1. DirectTouch Products and Services: Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. The Initial Term for DirectTouch products and services and any Managed Data Products and Services, including but not limited to data fees, integration fees and data services, required to power these products and services shall be for ninety (90) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    2. Exclusive and MyMailer Products and Services: Initial Term of the Services shall commence on the Service Activation date. The Initial Term for Exclusive and MyMailer products and services and any Managed Data Products and Services, including but not limited to integration and data services, required to power these products and services shall be for thirty (30) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
  2. Service Acceptance and Activation: GSM will notify You in writing (which may be by email) when each communication proof or developed solution for You pursuant to any Enrollment Form (“Your Proof”) is available for Your final review.  Three (3) calendar days after the earlier of (i) GSM sending notice to You of such availability (the "Acceptance Period"), or (ii) Your Proof approval, Your Proof shall be deemed accepted by You, and Your Proof shall be produced and billing of the monthly fees for Your Proof as outlined on the Enrollment Form will commence ("Acceptance") and shall be billed until terminated by You pursuant to the Master Terms.  If GSM receives written notice from You during the Acceptance Period that You believe Your Proof is materially different than what was outlined in the Enrollment Form, GSM will take reasonable measures to conform Your Proof to the original Enrollment Form.  Following such changes or other corrective action, GSM will notify you that Your Proof is again available for review and You will have 24 hours to provide written notice to GSM that You believe Your Proof is materially different than what was outlined in the Enrollment Form. GSM will take reasonable measures to conform Your Proof to the original Enrollment Form. Following such changes or other corrective action, GSM will notify you that such changes or corrective action has occurred and Your Proof shall be deemed Accepted by You.
  3. Invoicing and Payment of Fees:
    1. All accounts are subject to Fees as agreed to in any Enrollment Form. Selected additional Services will be subject to additional fees.
    2. Fees are billed by calendar month and invoiced after services are rendered.
    3. Payment of Fees are as described in the Master Terms.
    4. Campaign Budget Decisions. You acknowledge that, as part of the Program, GSM may reallocate the Campaign Budget amongst segments and/or channels. Subject to the terms and conditions of this Agreement, You will be billed based on actual delivery, not to exceed more than five (5) percent of the agreed-upon monthly Campaign Budget. You agree that You are responsible for all charges and associated maintenance and other fees GSM may collect as part of the Program (which charges/fees may be included in the Campaign Budget).

Digital Service Solutions

Release Date: August 16, 2018

 

  1. Term and Termination:
    1. 12 Month Enrollment Form Agreements - Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. Initial Term of the Service shall be for twelve (12) months and shall be automatically renewed for successive twelve (12) month terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    2. Month-to-Month Enrollment Form Agreements - Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. Initial Term of the Service shall be for ninety (90) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    3. Website Add-Ons Enrollment Form Agreements with WebCore, WebPremium, or WebElite Service package active - Initial Term of the Services shall commence on the Service Activation date. Initial Term of the Service shall be for six (6) months and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    4. Website Add-Ons Enrollment Form Agreements without a GSM provided website Service package - Initial Term of the Services shall commence on the Service Activation date. Initial Term of the Service shall be for ninety (90) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
    5. Digital Online Advertising Enrollment Form Agreements - Initial Term of the Services shall commence on the Service Activation date. Initial Term of the Service shall be for ninety (90) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
  2. Invoicing and Payment of Fees:
    1. All accounts are subject to a fees agreed to in any Enrollment Form. Selected additional Services will be subject to additional fees.
    2. Fees are billed by calendar month and invoiced after services are rendered.
    3. Website Platform Billing Timing: Such that a site or Service Activation on or before the 15th of the month will be billed for that month. Site or Service Activation after the 15th will be billed the following month. 
    4. Digital Advertising Billing Timing: Digital or online advertising will be billed for their media spend regardless of when advertising commenced during the month.
    5. Payment of Fees are as described in the Master Terms.
    6. See Budget decisions for each product below.
  3. Product Specific Terms
    1. Website Platform: Webcore, WebPremium, WebElite Service Package Options
      1. Service Acceptance and Activation: for new customers, or for material redesign and/or platform upgrades to existing websites, GSM will notify You in writing (which may be by email) when each website developed for You pursuant to any Enrollment Form (“Your Website(s)”) is activated and available for Your final review.  Five (5) calendar days after the earlier of (i) GSM sending notice to You of such activation (the "Acceptance Period"), or (ii) Your request to launch Your Website, Your Website(s) shall be deemed accepted by You, and billing for Your Website(s) will commence ("Acceptance").  Service will deem accepted upon Service Activation and use by You and shall be billed until terminated by You pursuant to the Master Terms.  For clarity, though billing may begin, none of Your Websites will be launched until GSM receives Your approval and request to launch.  If GSM receives written notice from You during the Acceptance Period that You believe Your Website is materially different than what was outlined in the Enrollment Form, GSM will take reasonable measures to conform Your Website(s) to the original Enrollment Form.  Following such changes or other corrective action, GSM will notify you that Your Website is again available for review, and a new Acceptance Period will commence.  “Acceptance” for any other Services under any Enrollment Form separate from the core website, e.g., for individual or packaged features, shall take place immediately with or without notice to You upon launch by GSM of such Service.
      2. You acknowledge that as part of the Services You and Your Subscribing Entities may receive use of and access to certain tracking phone numbers, as well as other services relating to such numbers, all of which have additional PSA Terms as described herein as the Telephone Services PSA.
      3. Should you receive GSM’s Incentives Manager product (or product or service with similar functionality) as part of the Services, You acknowledge and understand that Your use of the auto publish feature within Incentives Manager means Incentives Data will automatically be published on Your Sites, and Ads will automatically be created and published on the internet, thereby bypassing any initial review by you. You also acknowledge that you are solely responsible for (and GSM has no responsibility to You, Your Subscribing Entities, or to any third party for): (i) any information, language or other data, including, but not limited to Incentives Data, and the use and publication of any such information (including the Ads); (ii) compliance with any law, rule, regulation, or compliance standard and guidelines relating to the use and publication of the Incentives Data or Ads and any fines or other penalties imposed by any entity relating to any non-compliance. "Incentives Data" means automobile manufacturer incentive and rebate information, programs and incentives, whether provided by GSM through the Services or otherwise.  "Ads" means the advertisements automatically created by the Service from the Incentives Data for use with GSM's other Services.
      4. Should you receive GSM’s Inventory Marketing Package (or product or service with similar functionality) as part of the Services, You acknowledge that you are solely responsible for getting any accounts necessary for this Service (e.g., eBay and Craigslist accounts, as applicable) (“Third Party Accounts”); for any listings that are made on the Third Party Accounts (including, but not limited to, any improper or incorrect listings); and for paying any and all fees (including listing fees) required by the Third Party Accounts (or any other party).
      5. You acknowledge that You or Your OEM may request that GSM integrate third-party code (“Third-Party Code”) into Your Websites and that to the extent it is inserted into Your Websites, all Third-Party Code is the property of its owner(s) (the “Code Owner”).  You further acknowledge that GSM does not own the Third Party Code and makes no warranty or representation that the Third Party Code will (a) meet Your requirements, (b) be fit for a particular purpose, (c) be of satisfactory quality, (d) not erode or diminish Your Website performance, or (e) not infringe on the rights of third parties.  You agree and acknowledge that GSM’s implementation of the Third-Party Code into Your Websites may allow the Code Owner to access Your confidential and proprietary information (including Your customer information).  Further, in addition to any other indemnification obligations herein, You agree to indemnify, defend and hold harmless GSM from any and all claims, demands, liability and damages of every kind (including, without limitation, reasonable attorneys’ fees and other reasonable costs and expenses related thereto) and nature arising out of or in any way connected with the Third-Party Code.
    2. GSM Managed SEO, GSM Managed Content & Creative, GSM Managed Social:
      1. Service Acceptance and Activation. Service will deem accepted upon Service Activation or use by You and shall be billed until terminated by You pursuant to the Master Terms.
      2. Social Application for Facebook: You acknowledge and understand that we will be scraping your public website for data and information (“Website Information”) to be used by us on your Facebook page, which Website Information may include, but is not necessarily limited to, images, video, specials testimonials and OEM content; creating and accessing your Facebook page in order to add various tabs and Website Information to your “fan page”; and using such Website Information within advertisements on Facebook generally. In that regard, you hereby grant (and hereby warrant and represent that you have the right to grant) to us the right and license to create, use and access your Facebook account and the Website Information, in order to provide the Additional Services. You acknowledge that we have no way of knowing whether (and we have no responsibility to ensure in any way that) the Website Information is accurate or up to date. You shall review your Facebook page and ads deployed by us to ensure that the Website Information posted is accurate and up to date.
      3. Social Syndication: You acknowledge and understand that, although the Social Syndicator tool may provide you with Internet content about your dealership, you are solely responsible for any content that is posted to any social media channel (i.e., Facebook, Twitter, etc.). In that regard, you agree that you are solely responsible for any content or other information posted through or on any social media channel by you or any third party, for monitoring your social media accounts and content, and for compliance with any law, rule or regulation, including, but not limited to, any OEM (or similar) rules or regulations, state or federal laws or regulations, compliance rules, and standards and guidelines of any party. You agree you are solely liable for any fines or other penalties imposed for violation of (or non-compliance with) any such law, rule or regulation.
      4. SmartBlog Application: You acknowledge and agree that any content or other information posted within SmartBlog by you or any third party in any way is your sole responsibility. You are solely responsible for monitoring your SmartBlog content and for (and we have no responsibility to you or to any third party for) compliance with any law, rule or regulation, including, but not limited to, any OEM (or similar), or state or federal, compliance rules, standards and guidelines relating to the use and content within SmartBlog, and you are solely liable for any fines or other penalties imposed by any manufacturer or government entity relating to any non-compliance.
      5. Configuration of DealerRater within SmartBar: You acknowledge and agree that you are solely responsible for getting a DealerRater account for this Service and for paying any and all fees required by DealerRater (or any other party) for such account. You are also solely responsible for the use of DealerRater.
      6. ReputationDriver (Powered by DriverSide) and ReviewDriver and; You acknowledge and understand that the ReputationDriver and ReviewDriver products allow users of your website(s) to provide ratings and reviews on their experience at your websites via “Reviews.” You also acknowledge and understand that we may, at our discretion, syndicate Reviews to other sites, including  your other websites as well as third party sites, and you hereby grant us such right.  We (and our agents) shall have no responsibility for (and you are solely responsible for) any and all such Reviews, including, but not limited to, any Review content or the display of such Reviews on any third party site. 
      7. Dealer is responsible for complying with our standard procedures, as established by us from time to time, regarding the set-up of the Additional Services and for maintaining the URL on a secure page on its website.
      8. FinanceDriver® Dealer Representations and Warranties. Dealer acknowledges and agrees that Dealer must have an agreement in place with a credit bureau reporting agency to receive credit reports in order to use FinanceDriver®. Dealer represents and warrants that at all times during the Term: (i) it will have an agreement in place with a credit bureau reporting agency allowing it to request and receive credit reports; and (ii) it has obtained express consent from each consumer to request a credit bureau report and, where applicable, to submit a Credit Application to financial institutions for decisioning.
      9. TradeDriver® Additional Terms. (i) Offers: Dealer agrees to redeem all Offers presented by Potential Customers during the Redemption Period in accordance with the terms of the Offer, including those Offers presented after the expiration or termination of Dealer’s subscription to TradeDriver®. (ii) Dealer Responsibilities Regarding Trade-In Qualified Leads: Dealer is expressly prohibited from: (a) using Trade-in Qualified Leads for any purpose other than to purchase a Qualifying Vehicle from the Potential Customer; (b) contacting Potential Customers identified in a Trade-in Qualified Lead regarding additional vehicle purchases or sales unless the Potential Customer has explicitly consented to receiving this information; and (c) reselling, transferring, sublicensing or assigning Trade-in Qualified Leads .(iii) Offer Content: Dealer is solely responsible for the content of each Offer, including, without limitation any disclaimers or restrictions contained therein. Dealer will make no representation that we or any other third party is guaranteeing the vehicle value contained in the Offer. Without limiting the generality of other disclaimers contained in this Agreement, we specifically disclaim any representation, warranty or liability regarding any Offer. Dealer agrees to indemnify and hold us harmless against any and all claims, liabilities, losses and damages arising from any Offer.
      10. ProtectionDriver Additional Terms (i) Dealer and Customer Data: Dealer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all content submitted to ProtectionDriver. GSM reserves the right to withhold, remove and/or discard data without notice upon termination of Dealer’s license to use ProtectionDriver, (ii) Dealer and Third Parties Have No Claims Against GSM and its Affiliates for Content: The products and options that may be included in the Enrollment Form may be provided by third parties. GSM does not promote, support or endorse any products, descriptions, or options that may be offered on the menus and GSM and its affiliates and licensors shall have no liability with respect thereto. Any such product, description, language, option, activity, and any terms, conditions, warranties or representations associated with such activity, are solely between Dealer and the applicable third-party. GSM and its affiliates will have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Dealer and any such third-party. (iii) Dealer Responsible for Obtaining Rights to Third Party Content: Dealer is solely responsible for obtaining appropriate rights for the use of any third party content that it incorporates into ProtectionDriver, including, without limitation, any images or videos that Dealer uploads into ProtectionDriver. Dealer represents warrants and covenants that it will obtain and maintain such rights for so long as Dealer incorporates such content into ProtectionDriver.
      11. TradeDriver®, FinanceDriver®, and PaymentDriver® are the U.S. registered trademarks of Chrome Systems, Inc.
    3. Digital Online Advertising Services
      1. Service Acceptance and Activation. Service will deem accepted upon Service Activation or use by You and shall be billed until terminated by You pursuant to the Master Terms.
      2. Campaign Budget Decisions and Payment of Fees: (x) You acknowledge that, as part of the Program, we may reallocate the Campaign Budget amongst advertising providers and/or channels. Subject to the terms and conditions of this Agreement, You (or Your OEM, as applicable) will be billed based on actual delivery, not to exceed five (5) percent above the agreed-upon monthly Campaign Budget. You agree that You are responsible (or Your OEM, as applicable) for all charges and associated maintenance and other fees GSM may collect as part of the Program (which charges/fees may be included in the Campaign Budget); (y) Charges are solely based on GSM's measurements for the applicable Program, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of GSM and only in the form of advertising credit for only GSM properties as reported on month end from search engines and other third party websites. Charges are solely based on GSM's measurements for the applicable Program, unless otherwise agreed to in writing.
      3. You acknowledge and understand that part of the Program may include, among other things, the creation and posting of advertisements and copy on the World Wide Web and otherwise by us on Your behalf relating to Your dealership.  You are solely responsible for all web site content, services and landing pages that creative links, or directs viewers, to and advertised services and products.  You understand and agree that ads may be placed on any content, content network or property by GSM or provided by a third party Partner(s) upon which GSM places ads, and You shall provide GSM with any applicable administrative login credentials to Your account(s) on such content, content networks or properties.  You authorize and consent to all such placements.  GSM and/or Partners may reject or remove any ad or target for any or no reason.

Telephone / Wireless Services

Release Date: August 16, 2018

 

  1. Term and Termination: Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms.  The Initial Term shall be for thirty (30) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
  2. Service Acceptance and Activation: Service will deem accepted upon Service Activation and use by You and shall be billed until terminated by You pursuant to the Master Terms.
  3. Invoicing and Payment of Fees:
    1. All accounts are subject to Fees as agreed to in any Enrollment Form. Selected additional Services will be subject to additional fees.
    2. Fees are billed by calendar month and invoiced after services are rendered.
    3. Payment of Fees are as described in the Master Terms.
    4. Budget subject to the terms and conditions of this Agreement, You will be billed based on actual delivery, not to exceed more than ten (10) percent of the agreed-upon monthly Budget. You agree that You are responsible for all charges and associated maintenance and other fees GSM may collect as part of the Program (which charges/fees may be included in the Budget).
  4. Product Specific Terms:
    1. You acknowledge that as part of the Services You and Your Subscribing Entities may receive use of and access to certain tracking phone numbers, as well as other services relating to such numbers.
    2. You acknowledge and understand that, should you receive the call recording option as part of the Numbers, when a person calls a Number, the caller will be automatically advised that each call is subject to recording and monitoring prior to the connection of the telephone call to You or Your Subscribing Entities through the Number (the “Recorded Call Message”). You acknowledge that applicable laws and regulations may require that You and Your Subscribing Entities provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including all employees of You and Your Subscribing Entities) and/or other persons who receive telephone calls recorded by the Numbers. You represent, warrant and covenant that You will provide and/or obtain all notices, consents, and permission relating to the Numbers, as required by applicable laws and regulations, and shall otherwise use the Number in full compliance with all applicable laws and regulations.  GSM and/or Our applicable representative may review and evaluate digitized telephone calls at Your request and for internal quality assurance, maintenance and troubleshooting.  GSM or its licensor, as applicable, owns all Numbers listed to You and Your Subscribing Entities, with the exception of numbers originally owned by You or Your Subscribing Entities and “ported” to GSM or its licensor.
    3. You shall cause all communications initiated to its customers through the Service to comply with all applicable laws and regulations, including without limitation those promulgated by the U.S. Federal Trade Commission and the U.S. Federal Communications Commission in connection with telemarketing and the prevention of unwanted phone calls.
    4. Relating to this Service, GSM may bill You for any usage incurred during a month in excess of the Usage Allowance (as defined below) at the rate of ten cents ($0.10) per minute.
    5. Unused Usage Allowance does not roll over from one calendar month to the next. “Usage Allowance” means the aggregate number of minutes each calendar month that are included in the purchased Services.  Usage Allowance is pooled across all purchased Services with Numbers at Your Store level and may not be pooled by You across Your Subscribing Entities.  If a Service is activated for a partial month of service, the Usage Allowance shall be pro-rated based on the number of days during the month that the Service was active. 
    6. Relating to Your use of CallTracking for the Program, GSM may bill You (or Your OEM, as applicable) for any usage incurred during a month in excess of the Usage Allowance (as defined below) at the rate of ten cents ($0.10) per minute. Unused Usage Allowance does not roll over from one calendar month to the next. “Usage Allowance” means the aggregate number of CallTracking minutes each calendar month that are included in the purchased Services. Usage Allowance is pooled across all purchased Services with CallTracking at Your Site level and may not be pooled by You across Your Sites. If a Service is activated for a partial month of service, the Usage Allowance shall be pro-rated based on the number of days during the month that the Service was active.

Mobile Application

Release Date: August 16, 2018

 

  1. Term and Termination. The Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. The Initial Term for the ServiceLift® mobile app and Services and any Managed Data Products and Services, including but not limited to data fees, integration fees and data services, required to power these products and services shall be for shall be for twelve (12) months and shall be automatically renewed for successive twelve (12) month terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms. 
  2. Service Acceptance and Activation: Service will deem accepted upon Service Activation and use by You and shall be billed until terminated by You pursuant to the Master Terms.
  3. Invoicing and Payment of Fees:
    1. All accounts are subject to Fees as agreed to in any Enrollment Form. Selected additional Services will be subject to additional fees.
    2. Fees are billed by calendar month and invoiced after services are rendered.
    3. Payment of Fees are as described in the Master Terms.
  4. Product Specific Terms:
    1. GSM has developed the ServiceLift® Dealer Mobile App, which is a mobile platform and online service to manage content on the platform on behalf of automobile dealers. Upon execution of the Enrollment Form, GSM will create a mobile application for Your business use and submit it to the mobile provider(s) designated by You. The app created by GSM will feature the Your specific name, logo and trademarks but will at all times credit GSM as owner of the app and contain the following (or similar, as solely directed by GSM) legend: the ServiceLift® Dealer Mobile App, owned and powered by GS Marketing, Inc. GSM will provide Dealer with the specific Launch Materials described in the Dealer Customization Sheet, but will not provide training or customer/technical support. Dealer acknowledges that it will receive no exclusive territory or other rights with respect to the ServiceLift® Dealer Mobile App; GSM reserves the right to create and license the ServiceLift® Dealer Mobile App to other automobile dealers without regard to location or manufacturers represented. You acknowledge that You will receive no exclusive territory or other rights with respect to the Your Mobile App. GSM does not guarantee acceptance of Your Mobile App by any mobile device provider. You further acknowledges that the consumer end users of the app are and will at all times remain the exclusive customers of GSM.
    2. The App does not collect real time location, precise information about the location of the mobile device.
    3. GS Marketing will retain User’s personal identification information for as long as User uses the App and for a reasonable time thereafter. GS Marketing will retain non-personal identification information for up to 24 months and thereafter may store it in the aggregate. If User desires for GS Marketing to delete personal identification information, User should contact GS Marketing and it will respond in a reasonable time. User should note that some or all of such information may be necessary for the App to function properly.

Email Services

Release Date: August 16, 2018

 

  1. Term and Termination: Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms.  The Initial Term shall be for thirty (30) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
  2. Service Acceptance and Activation: Service will deem accepted upon Service Activation and use by You and shall be billed until terminated by You pursuant to the Master Terms.
  3. Invoicing and Payment of Fees:
    1. All accounts are subject to Fees as agreed to in any Enrollment Form. Selected additional Services will be subject to additional fees.
    2. Fees are billed by calendar month and invoiced after services are rendered.
    3. Payment of Fees are as described in the Master Terms.
  4. Product Specific Terms:
    1. Should you receive email Services, including but not limited to, distribution, execution, creation (or product or service with similar functionality) as part of the Services, You acknowledge and agree that the Services may be used solely for purposes of marketing to persons with whom you have a prior business relationship.  Without limiting the foregoing, the Services may not be used as described in the Prohibited Uses section contained in the Agreement.
    2. Use of Email Appends: You hereby covenant that the customer email addresses provided by GSM shall only be used by You. You shall use such data for your customer marketing and management purposes only, and You shall not transfer possession, right or title of or to such data for any other purpose whatsoever except as permitted under applicable law.

DMS Integration

Release Date: August 16, 2018

 

  1. Term and Termination: Initial Term of the Services shall commence on the Service Activation date, as defined in the Master Terms. The Initial Term shall be for thirty (30) days and shall be automatically renewed for successive thirty (30) day terms (each a “Renewal Term”) unless terminated or cancelled by either party prior to any Renewal Term and pursuant to the Master Terms.
  2. Service Acceptance and Activation: Services will be deemed accepted upon Service Activation or use by You and shall be billed until terminated by You pursuant to the Master Terms.
  3. Invoicing and Payment of Fees:
    1. All accounts are subject to fees as agreed to in any Enrollment Form. Selected additional Services or Service changes will be subject to additional fees.
    2. Fees are billed by calendar month and invoice after services are rendered.
    3. DMS Integration does not allow for any type of prorated fees for Services.
    4. Payment of Fees are as described in the Master Terms.
  4. Product Specific Terms:
    1. NOTICE TO NORTH CAROLINA DEALERS: THIS PRODUCT SPECIFIC AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION, CUSTOMER RELATED DATA AND SUBSCRIBER DATA, AS DEFINED IN THE MASTER TERMS.
    2. You are provided a limited license authorizing the operation of GSM or the DMS integrator’s (collectively “DMS Integrator”) interface only with the data management system interfaced product (“Interfaced Product”) and only for one user with each license fee that is paid.
    3. You are prohibited from copying, disassembling, decompiling, and/or reverse engineering the interfaced product and the DMS Integrator’s interface.
    4. GSM reserves all rights, title, and interest in and to the Interfaced Product.  DMS Integrator reserves all rights, title, and interest in and to the DMS Interface.
    5. You are prohibited from the (a) transfer of or access to the Interfaced Product and the DMS Interface to or by third parties; (b) lending, leasing, sublicensing or pledging of the Interfaced Product and the DMS Interface by You; and (c) service bureau or outsourcing uses of the Interfaced Product and DMS Interface.
    6. Service(s) and Product(s) provided under this Agreement contain portions of program code owned by third party licensors and such licensors will be entitled to enforce this License as an intended third party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third party licensors. Licensee shall not disclose any passwords or other security information that are related to the DMS Interface or other software licensed by this License.  ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  In no event will any licensor be liable for indirect, incidental, consequential or exemplary damages arising from use, or inability to use DMS Interface(s), even if they knew of the possibility of such damages.
    7. All rights to use or maintain possession of the Interfaced Product and the DMS Interface will terminate immediately upon Your breach of any material provision of this agreement.
    8. You are prohibited from using the Interfaced Product and DMS Interface outside the definitions and processes defined in any Product Specific Agreement.
    9. You warrant that, for purposes of the data that may be accessed by GSM and/or Your DMS Provider, pursuant to this agreement, You have provided any required privacy notices to Your customers as required by applicable law, including but not limited to, the Gramm-Leach-Bliley Act and its implementing regulations (“GLBA”), and to the extent applicable, the privacy laws of any state, Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), and any other relevant privacy laws Canada or of any province of Canada or other relevant jurisdiction.
    10. GSM agrees to provide prompt notice to You in the event of known or reasonably suspected privacy or security breaches.
    11. You have the right to terminate this Agreement for GSM’s noncompliance with any privacy laws or regulations.
    12. Upon termination of this Agreement, GSM shall deliver or destroy all data according to the Master Terms.
    13. GSM is required to implement and maintain appropriate safeguards to protect any Customer NPI that GSM obtains pursuant to this Agreement for so long as GSM has access to any such Customer NPI and according to the Master Terms.
    14. GSM is prohibited from accessing, storing, sharing, disclosing or using any Customer NPI obtained pursuant to this Agreement other than as necessary to carry out the purposes for which You have provided access to the Customer NPI or as otherwise required by law.
    15. You grant GSM permission to access Customer NPI to the extent necessary to provide the services contracted for under this Agreement (including the Interfaced Product and the DMS Interfaces) and specifically permits Your DMS Provider and GSM to provide access to Customer NPI to one another for that purpose.
    16. As part of the DMS Certified Interface program, your DMS provider or its affiliates has developed certain processes that allow certain third party software, including GSM, to receive from Your DMS Provider certain data from your DMS and/or allow GSM to send data to your DMS. By agreeing to these terms, You are providing your consent to: (a) Your DMS Provider to provide GSM with access to data from your DMS; and (b) GSM to provide Your DMS Provider with access to GSM’s Product data, both of which may include, without limitation, non-public information regarding Your customers.  By agreeing to these terms you represent and agree that: (a) Your DMS Provider makes no representations, assurances, warranties or guarantees with respect to GSM’s Product or GSM’s obtaining access to data from your DMS through the DMS Integration or otherwise; (b) Your DMS Provider shall have no liability whatsoever for any damages you may suffer as a result of using GSM’s Product or because of GSM’s access to data from your DMS; (c) Your DMS Provider has no responsibility for the activities of GSM with respect to its access to data from your DMS, including without limitation, with respect to Customer NPI obtained or used by GSM; (d) Your DMS Provider may terminate the integration described in this Agreement at any time if Your DMS Provider determines that such integration may conflict with or adversely affect the operation or security of your DMS (including without limitation the integrity or security of the data) or such access may violate any applicable laws or regulations; (e) problems caused by the data access described in this Agreement will not be covered by any software support and equipment maintenance services or fees previously agreed between you and Your DMS Provider; and (f) Your DMS Provider has the right to enforce its rights under this agreement. 
    17. If, and only if, your Subscriber Data is integrated through Superior Integrated Solutions Inc. (“SIS”), the following terms are applicable:
      1. You have the authority to make this request, and you authorize GSM or Our third party DMS data provider, Superior Integrated Solutions Inc. (“SIS”) to access Your system for the enrolled areas via modem and/or network to Our computer system for the purpose of doing work on Your behalf.
      2. You agree that SIS will not be held liable for any system related issues not directly related to the programming request.
      3. Information on Your system is proprietary to You and will not be viewed and/or altered without Your consent.
      4. SIS will have access to Your system within the specified parameters of this Agreement and all work requested will be Your sole property and will not be removed and/or altered without Your consent.
      5. SIS will be using the software licensed by You for the sole purpose of this Agreement.
      6. You acknowledge and agree that by executing any applicable Enrollment Form You have read and agree to the terms and conditions contained in the End User License Agreement, which is located athttp://www.superiorintegratedsolutions.com/eula_licensing-agreementnew.pdf You further acknowledge and agree that the terms of said End User License Agreement are fully incorporated and included in this Agreement and are binding on the parties hereto.