These Additional Terms, along with the Advertiser Relationship Agreement (“ARA”) and the Order Form (“Order Form”), constitute one binding agreement (the “Agreement”) between AutoTrader.com and its Affiliates (“ATC”) and the Dealer identified in the Order Form for the purchase of the LeadDriver Service as identified in the Order Form. By continuing to place LeadDriver on Your Website(s), Dealer agrees to check this page periodically to ensure its continuous agreement with these Additional Terms. If Dealer is, at any time, in disagreement with any of the Additional Terms, Dealer may terminate the Order Form as provided for in the ARA.
- 1. DESCRIPTION OF SERVICES:
- a) LeadDriver is a single customized online application featuring trusted consumer information from Kelley Blue Book (“KBB”), such as Blue Book® Trade-In Values, and is hosted by KBB (the “Application”) for use on Your Web site(s) for access by visitors (the “Users”) to Your Web site(s) (the “Service”). KBB will configure the Application with any options You selected and send instructions to You by email (the “Installation Instruction Email”) for installing all necessary links on Your Web site to use the Application. Any changes to the Application configuration may require additional fees.
- b) Your Web site(s) must integrate the Application by means of an HTML Frame, with Your name or logo or other identifying marks in the Frame. The Application may not be presented to Users in a HTML Pop-up or similar device or in a non-Framed Web page.
- c) As part of the Installation Instruction Email, KBB will provide to You approved text links and graphic links featuring selected KBB logos and trademarks. KBB authorizes Your use of these approved text links and graphic links on Your Web site(s) during the Term of this Agreement to solicit Users to access the Application. Other than scaled resizing, You agree not to alter the text links and graphic links except with the express prior written consent of KBB.
- d) The Application will capture the contact information (“Lead Data”) entered by Users and forward to You.
- 2. LICENSE GRANTS:
- a) BY KBB. During the Term of this Agreement, KBB grants to You a limited, non-exclusive, non-transferable, right and license to use: i) the Service and Application during the Term, subject to the terms of this Agreement, ii) KBB trademarks and logos that KBB designates for Your use solely on Your Web site as permitted hereunder. You acknowledge and agree that KBB owns and otherwise has the exclusive right to use and to license its marks. You may not alter, modify or manipulate KBB’s logos and marks without KBB’s express, written consent. KBB retains any and all rights of copyright, trademark and all other rights in its own marks. The limited license granted herein shall terminate upon the termination or expiration of this Agreement. All rights not expressly granted to You are reserved by KBB and its licensors.
- b) Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service or the Application, (ii) modify or make derivative works based upon the Service or the Application, or (iii) use the KBB trademarks and logos in any advertising creative, any search engine marketing campaign (e.g., Google AdWords) or site optimization activities (including, but not limited to, use in page meta data, meta tags, Web page titles, URLs, or sub-domain URLs).
- c) BY YOU. During the Term of this Agreement, You grant to KBB a limited, non-exclusive, non-transferable, right and license to: i) use, copy, store, transmit and display the Lead Data solely to the extent necessary to provide the Service, ii) use Your name, trademarks and logos solely in connection with KBB’s performance of its obligations to You as required hereunder. KBB acknowledges and agrees that You own and otherwise have the exclusive right to use and to license Your marks. KBB will not alter, modify or manipulate Your logos and marks without Your express, written consent. You will retain any and all rights of copyright, trademark and all other rights in Your own marks. The limited license granted herein shall terminate upon the termination or expiration of this Agreement.
- 3. YOUR RESPONSIBILITIES: You are responsible for any and all activities that occur on Your Web site(s). You shall: (a) notify KBB immediately of any unauthorized use of any Lead Data or any other known or suspected breach of security; (b) report to KBB immediately and use reasonable efforts to stop immediately any copying or distribution of Lead Data that is known or suspected by You; (c) assure that Your Web site and Your use of the Service and Application at all times complies with all applicable local, state, federal, and international laws, regulations, and conventions, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data.
- 4. RESTRICTED USE OF LEAD DATA: You agree that You will not transmit Lead Data to any third party for any reason or purpose unless such transmission is performed with the consent of the User who submitted the Lead Data. You shall comply with all applicable laws, statutes, ordinances and regulations regarding Your use of the Service, the Application, and receipt and delivery of Lead Data. KBB agrees that it will not transmit to any third party, for compensation or free of charge, Lead Data for any purpose, unless such transmission is performed with Your consent and the consent of the User who submitted the Lead Data. Nothing herein shall prohibit KBB from aggregating information from Lead Data (e.g. User vehicle statistics) and using such information for its internal and commercial purposes.
- 5. KBB OWNERSHIP: KBB alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Service and Application and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service and Application. This Agreement is not a sale and does not convey any rights of ownership in or related to the Service or Application to You. The KBB name, logo, and the product names associated with the Service are trademarks of KBB, and no right or license is granted to use them, except as otherwise provided herein. You agree to not use any of the KBB’s logos or trademarks as search terms, keywords, or in any other manner with search engines or devices.
- 6. TERMINATION
- a) KBB may deny You access to all or part of the Service without notice if You engage in any conduct or activities that KBB believes in it sole and absolute discretion violates applicable law or any terms of this Agreement. You agree that any termination of Your access to the Service and the Application hosted by KBB under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that KBB may immediately deactivate or delete Your account and all related information and Lead Data files in Your account and/or bar any further access to such files or the Service. Further, You agree that KBB shall not be liable to You or any third-party for any termination of Your access to the Service or the Application.
- b) Upon the termination of this Agreement, regardless of the reason therefor or the fault (if any) of any party, any rights granted hereunder or in connection with the performance of this Agreement to use any images, logos, photographs, footage, trademarks, symbols, confidential materials, trade secrets, data, or other materials provided by the other party, shall immediately terminate. You agree and acknowledge that KBB has no obligation to retain Lead Data in the event of termination of the Service for non-payment, and as such Lead Data will be irretrievably deleted.
- 7. INDEMNIFICATION OBLIGATIONS: In addition to your indemnification obligations under the ARA: You shall indemnify and hold KBB and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a breach by You of this Agreement.
- 9. INTERNET DELAYS; FORCE MAJEURE: THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KBB IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. KBB SHALL NOT BE LIABLE IN ANY WAY FOR ITS FAILURE TO PERFORM HEREUNDER IF SUCH FAILURE IS OCCASIONED BY ANY OF THE FOLLOWING: WAR; FIRE; FLOOD; INTERRUPTION OF TRANS-PORTATION; EMBARGO; ACCIDENT; EXPLOSION; GOVERNMENTAL ORDERS, REGULATIONS, RESTRICTIONS, PRIORITIES OR RATIONING; STRIKE, LOCKOUT OR OTHER LABOR PROBLEMS; OR ANY REASONABLE CAUSE BEYOND THE CONTROL OF KBB.
- 10. DISCLAIMER; LIMITATION OF LIABILITY: IN ADDITION TO THAT STATED IN THE ARA:
- A) YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE AND APPLICATION IS AT YOUR SOLE RISK. THE SERVICE, THE PRESENTATION OF KBB CONTENT, PRICING REPORTS AND DATA ON YOUR WEB SITE(S), AND THE COLLECTION AND TRANSMISSION OF LEAD DATA TO YOU, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KBB EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOR DOES KBB GUARANTEE THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM OR RELATED TO THE SERVICE OR APPLICATION IS FREE OF VIRUSES, WORMS, OR OTHER HARMFUL COMPONENTS. KBB MAKES NO WARRANTY THAT (i) THE SERVICE OR APPLICATION WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE OR APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE AND/OR APPLICATION WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE APPLICATION RELATED TO THE SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KBB SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
- B) KBB IS NOT RESPONSIBLE FOR THE ACCURACY OR INTERRUPTION OF, OR ANY ERRORS OR MALFUNCTION IN, THE APPLICATION OR OTHER SERVICES PROVIDED BY KBB HEREUNDER. KBB IS NOT LIABLE FOR ANY DAMAGES, WHETHER FORESEEABLE, UNFORESEEABLE, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHERWISE, OR ANY COSTS OR EXPENSES INCURRED BY YOU OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO, IN CONNECTION WITH OR AS A RESULT OF ANY SERVICE PROVIDED BY KBB HEREUNDER OR THE INACCURACY OR OMISSION THEREOF OR THEREFROM (INCLUDING, WITHOUT LIMITATION, FOR THE PROCUREMENT OF SUBSTITUTE SERVICES, LOSS OF BUSINESS OR LOSS OF PROFITS), EVEN IF KBB OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITIES THEREOF. YOUR SOLE REMEDY IN THE EVENT KBB SHALL FAIL TO PROVIDE THE SERVICES SHALL BE A PRORATED REFUND OF ANY FEES PAID BY YOU TO KBB IN ADVANCE FOR SUCH SERVICES. YOU HEREBY WAIVE ANY RIGHTS AGAINST KBB OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND ADVISORS THAT YOU (OR ANY PERSON OR ENTITY CLAIMING ANY RIGHT BY, THROUGH OR ON BEHALF OF YOU) MAY OTHERWISE HAVE, AT LAW, IN EQUITY, OR UNDER THIS AGREEMENT OR OTHERWISE, TO ANY OTHER DAMAGES, COSTS OR EXPENSES.
- 11. OUR RELATIONSHIP: No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between You and KBB by this Agreement. No party has the right, power or ability to create a liability or obligation for or of the other party. This Agreement is between KBB and You and is not intended to be for the benefit of any third party.