This Nationwide Auto Titling Agreement (this “AGREEMENT”) sets forth terms of the relationship between Title Technologies, Inc., a Delaware corporation, and its assignees, (“TitleTec”) and the person(s) and the Dealership entity shown below by the signature line, (referred to as the “Customer”) regarding TitleTec’s intellectual property and TitleTec’s license of the same to the Customer.
1. LICENSE. TitleTec is granting the Dealership a non-exclusive and non-transferable license to use TitleTec’s Nationwide Auto Titling Software (the “Software”) at a certain designated location. The Customer may not copy the Software or any hard copies of documents related to the Software except as instructed by TitleTec. Any Software provided to the Customer in machine readable form may not be copied by the Customer in whole or in part, except for the Customer’s backup or archive purposes. The Customer will not modify, reverse engineer, disassemble or decompile the Software or any portion thereof or allow any of its employees or agents to do the same.
2. LICENSE LIMITATIONS. The Customer hereby acknowledges that all Software modifications shall be the sole property of TitleTec. The Customer further acknowledges that all copies of the Software in any form provided by TitleTec or made by the Customer are the sole property of TitleTec, its successors or assigns and/or its suppliers. The Customer also hereby acknowledges and agrees that the Software and any documents related thereto constitute and contain valuable proprietary products and trade secrets of TitleTec and/or its suppliers, embodying substantial creative efforts and confidential information, ideas and expressions. Accordingly, the Customer agrees to secure and protect (and take precautions to ensure that its employees treat) the Software and any documents related thereto as proprietary and confidential. The Customer’s obligations as set forth in this AGREEMENT will survive the termination of this AGREEMENT or of any license granted under this AGREEMENT for whatever reason.
3. ACCESS LIMITATIONS. The Customer also hereby agrees: (1) that it shall limit access to any Authorized User Terminal to Authorized Users approved by the State of Georgia and trained by TitleTec; (2) no Authorized User Terminal may be left unattended, even briefly, while logged on to the Software system; (3) no Authorized User Terminal (Including any monitor, printer, printout or other form or display or duplication of information derived from TitleTec or the Software or provided pursuant to this AGREEMENT) may be placed or positioned so that it may be seen by anyone not an Authorized User; and (4) any printed copy of vehicle record as collected and maintained by TitleTec or a State pursuant to applicable law, with respect to a motor vehicle, including identification, ownership, and any liens or other encumbrances pertinent to such vehicles and obtained through this Agreement will be destroyed as soon as its legitimate use has ended.
4. DEFINITIONS.
A. AUTHORIZED USERS shall mean, an employee or principal of Customer who is authorized, pursuant to procedures adopted by TitleTec, to access vehicle records or file vehicle record information electronically.
B. AUTHORIZED USER TERMINAL shall mean any computer terminal, monitor, and/or any related peripheral device used by an Authorized User to view, print, retrieve, store, transmit or otherwise access or manipulate information pursuant to this AGREEMENT.
C. SOFTWARE shall mean [ OPEN ]
D. DOCUMENTATION shall mean [ OPEN ]
5. EQUITABLE REMEDIES. Customer hereby acknowledges that a breach of this AGREEMENT will cause TitleTec and any applicable third parties irreparable injury and damage and that TitleTec and any applicable third parties will have the right to seek to enjoin such a breach or obtain any other equitable relief, without the requirement of a bond or security of any nature, in addition to any other rights or remedies available to TitleTec or the applicable third parties at law or in equity.
6. INDEMNITIES. The Customer shall indemnify and hold TitleTec harmless, together with TitleTec’s officers, agents and employees, from and against any claims, demands, or causes of action whatsoever arising on account of Customer’s modification, misapplication, enhancement of the Software or otherwise, or caused by, arising out of or resulting from the use of the Software by Customer, its subsidiaries or their officers, employees, agents or representatives.
7. WARRANTY/DISCLAIMER OF WARRANTIES.
A. WARRANTY. Each party shall comply with the Gramm Leach Bliley Safeguards Rule, (16 CFR Part 314 by developing, implementing and maintaining a comprehensive information security program that is written in one or more readily accessible parts and contains administrative, technical, and physical safeguards that are appropriate to such party’s size and complexity, the nature of the scope of such party’s activities and sensitivity of any personal information at issue.
B. DISCLAIMER OF WARRANTIES. TitleTec does not represent or warrant that errors in the software or documentation will not occur. In the event of errors in the Software or Documentation, TitleTec’s sole obligation in such event is to take commercially reasonable steps to correct such errors. TitleTec’s sole obligation in such event will be to provide corrected Software or corrected Documentation or data resulting from such errors. TitleTec will make a reasonable effort to have the Software available during normal operating hours. However, TitleTec cannot guarantee such availability and is not responsible in any manner for the availability of the Information Services. Accordingly, the sole liability of TitleTec to Customer or any third party for claims arising out of the unavailability or interruption of the Software for any reason will be to use commercially reasonable efforts to make the Software available promptly. These are the sole remedies available to Customer or any third party for claims relating to the matters covered by this paragraph regardless of the form in which the claim or action may be asserted, and TitleTec will not have any monetary or other liability as to any claim. TITLE TEC WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR IN CONNECTION WITH ANY SERVICE OR PRODUCT FOR THE USE OR PERFORMANCE THEREOF, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TITLE TEC SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF SOFTWARE OR DOCUMENTATION. The sole remedy that Customer or any third party may have against TitleTec under this AGREEMENT or otherwise for any matters other than those covered in this Paragraph will be damages limited to the lesser of (i) the amount of the actual damages incurred by Customer; and (ii) an amount equal to one months’ average fees paid by Customer to TitleTec for the specific piece of the Software or Software application on which the claim is based. Such fees will be averaged based on the average of those fees for the 12 months preceding the month in which the damage or injury is alleged to have occurred.
8. FEES. The Customer agrees to pay fees to TitleTec for the use of the Software per the TitleTec Pricing Schedule. Fees are subject to change on an annual basis. The annual basis will be calculated starting from the date of acknowledgement and agreement on this AGREEMENT. TitleTec will provide written notification 30 days prior to the date of any fee changes.
9. TERM AND TERMINATION. This AGREEMENT may be terminated by either party with thirty (30) days prior written notice.
10. MISCELLANEOUS.
A. Assignment. This AGREEMENT may be assigned by TitleTec to any of TitleTec’s successors, affiliates, or assigns without obtaining the consent of the Customer.
B. Governing Law and Authority. This Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflicts of law provisions. Each party warrants to the other that it has full power and authority to enter into and perform this Agreement. Each party further acknowledges that it has read this Agreement, understands it and agrees to be bound by it. Upon signature of the parties below, this Agreement shall be and becomes a binding agreement between the parties according to its terms.
C. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed on behalf of the party against whom it is asserted. Any consent by any party to, or waiver of, a breach of the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any different or subsequent breach of this Agreement by such party.
D. Severability. If any of the provisions of this Agreement are declared to be invalid or unenforceable by a court of competent jurisdiction, such provisions shall be ineffective to the extent of such invalidity or unenforceability while the other provisions hereof shall remain in full force and effect.
E. Equitable Remedies. Customer hereby acknowledges that a breach of this AGREEMENT will cause TitleTec and any applicable third parties irreparable injury and damage and that TitleTec and any applicable third parties will have the right to seek to enjoin such a breach or obtain any other equitable relief, without the requirement of a bond or security of any nature, in addition to any other rights or remedies available to TitleTec or the applicable third parties at law or in equity.
F. Entire Agreement; Amendment. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous representations, discussion, negotiations, letters, proposals, agreements and understandings between the parties hereto with respect to the subject matter hereof, whether written or oral. This Agreement may be amended, modified or supplemented only in a writing duly executed by an authorized representative of each of Customer and Title Tec.
G. Force Majeure. Either party shall be excused from failures or delays in delivery or performance hereunder if such failure or delay is attributable to causes beyond the reasonable control of the party which makes such performance or delivery commercially impractical and such failure or delay could not have been prevented or circumvented by the non-performing party through the use of alternate sources, workaround plans or other reasonable precautions. In the event of any such delay, the time of delivery or performance and time of payment shall be extended for a period of time equal to the time lost by reason of such delay (unless otherwise specified in writing between the parties hereto) provided that such party continues to use its best efforts to recommence performance as soon as possible and to whatever extent possible without delay. The non-performing party shall immediately notify the party to whom performance is due and describe at a reasonable level of detail the circumstances causing such failure or delay.
H. Controlling Document. Notwithstanding any inconsistent or additional terms and conditions which may be contained in a purchase order, invoice, voucher or other similar document issued by either party, such document shall be for issuing party’s internal purposes only and the terms and conditions of this Agreement shall prevail. Therefore, even if such document is acknowledged or accepted by the receiving party and regardless of any statement to the contrary which may be contained therein, the inconsistent or additional terms and conditions of such purchase order, invoice, voucher or other similar document shall have no force or effect on this Agreement.
I. Interpretation; Construction. The parties agree that this Agreement is the result of careful negotiations between sophisticated parties and thus any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
J. Signature/Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both of which, taken together, shall constitute one agreement binding on both parties. A facsimile signature or other similar electronic reproduction of a signature shall have the force and effect of an original signature, and in the absence of an original signature, shall constitute the original signature.
K. Survival. The Customer’s obligations under this AGREEMENT for payment of Fees will remain in full force and effect after the termination of this AGREEMENT until all fees due and owing, are paid in full.