RETAIL PRICE PRO AGREEMENT
Intelligence, LLC (“TI”) and any company (“Company”) and any person employed by
Company and authorized by Company to act on behalf of Company (“Customer”) who
is a registered user of the services TI provides, including access to
information and data about products and pricing associated with the tire and
vehicle industries (the “Service”) through web sites owned, operated and
provided by Provider (the “Web Sites”).
BY CHECKING THE ACCEPTANCE BOX OR ACCESSING, USING OR INSTALLING ANY
PART OF THE SERVICE, CUSTOMER AND, THROUGH THE AUTHORIZATION OF USER BY
COMPANY, COMPANY SIMULTANEOUSLY EXPRESSLY AGREES AND CONSENTS TO BE BOUND BY
ALL OF THE TERMS OF THIS AGREEMENT IF USER DOES NOT AGREE TO ALL OF THE TERMS
OF THIS AGREEMENT, CUSTOMER MUST NOT CHECK THE BOX INDICATING ACCEPTANCE, TI
WILL PROMPTLY CANCEL THIS TRANSACTION AND CUSTOMER MAY NOT ACCESS, USE OR
INSTALL ANY PART OF THE SERVICE.
Background. TI desires to provide to Customer a personal and non-exclusive right to
access and use Retail Price Pro data and service to provide retail tire prices
and tire specifications, and Customer desires to access and use that data and
service, on the terms and conditions of this Agreement Services
In consideration of the mutual promises
in this Agreement and other good and valuable consideration, the receipt and
sufficiency of which the parties acknowledge, the parties agree as follows:
1. Services. TI will provide to Customer a limited, non-exclusive, non-transferable, non-sublicenseable license and right to access and use the Services in accordance with this Agreement, including TI’s terms and conditions of Services attached to this Agreement as Exhibit A (“Terms and Conditions”) and the other exhibits attached hereto. Customer’s use of the Service will be limited to a total of five (5) concurrent users. TI may collect certain customer information through the Services in accordance with Section 10 of the Terms and Conditions. 2. General. Exhibits A and B attached to this Agreement are incorporated into this Agreement. If any conflict arises between different provisions of this Agreement, the following order of precedence shall apply to resolving that conflict: (a) the signature page of this Agreement, (b) the Terms and Conditions. This Agreement will be governed by North Carolina law, excluding its conflict of laws provisions, and (c) Exhibit B. This Agreement contains the entire agreement of the parties relating to the subject matter and supersedes all previous and contemporaneous agreements, understandings, usage of trade and courses of dealing, whether written and oral. This Agreement will be binding on, and will inure to the benefit of, the parties and their respective successors, heirs and permitted assigns. As used herein, the words “including,” “include” and “includes” will not be construed to be limiting. This Agreement may be modified by TI with 30 days’ prior written notice. YOU MUST AGREE TO THIS AGREEMENT AND THE TERMS AND CONDITIONS IN IT TO BE ENTITLED TO RECEIVE THE SERVICES. BY CHECKING THE “ACCEPT” BOX BELOW, THE INDIVIDUAL TAKING THAT ACTION CERTIFIES THAT HE OR SHE IS AN AUTHORIZED REPRESENTATIVE OF THE CUSTOMER NAMED IN THIS AGREEMENT AND THAT SUCH CUSTOMER AGREES TO, AND WILL BE BOUND BY, ALL OF THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, PLEASE CLICK THE “DECLINE” BUTTON BELOW.
to Retail Price Pro Agreement
AND CONDITIONS OF SERVICES
a. Data. All data, photographs, and other information TI and its licensors
provide to a Customer as part of the Services.
b. Services. Includes the Data and all related software that TI or its licensors
provide or allow Customer to access or use.
2. Services; Data. TI will perform the Services for Customer.
Subject to Section 3 below, TI grants to Customer a limited,
non-exclusive, non-transferable, non-sub-licensable, license, right to access
and use the Services on the terms and conditions of this Agreement, for
Customer’s own internal business purposes only.
3. Access to Data.
a. TI will provide to Customer a login ID,
password, or similar means to access the Data as expressly authorized by this
Agreement. TI may rely on the authority of anyone using Customer’s login
information, and Customer is responsible for all uses of the Services by any
person using Customer’s login information. TI reserves the right to take any
and all action, as it deems necessary or reasonable, to ensure the security of
the Data, including changing Customer’s login ID or password or suspending
Customer’s access to the Data.
b. TI will use reasonable efforts to provide
Customer access to the Data with minimal interruptions; provided that TI
cannot guarantee that Customer will have access to the Data at all times. There
will be times when the Data will be unavailable due to maintenance or other
events, including an event of Force Majeure (defined below). The Data may not
be accessible from all locations or electronic devices. Customer must provide
and maintain its own computer, web browser, and internet connection.
4. Proprietary Rights. All
copyrights, patent rights, trademarks, service marks, trade dress, trade names,
logos, corporate and domain names, rights in innovations and inventions,
know-how, trade secrets, and derivative works, including all renewals,
extensions and continuations, and other intellectual property rights
(collectively, “IP Rights”) in and to the Services are and will remain
owned by TI and its licensors. TI and its licensors retain all right,
title, and interest in and to the Data, the Services, and all IP Rights in and
to all of them. Customer will not, and will not allow any other person or entity to, use
any trademarks or logos owned or licensed by TI or its licensors on Customer’s
or any other person’s or entity’s website or marketing material. Customer will not, and will not allow any other person or entity to modify
any trademark or logo of TI or its licensors.
5. Restrictions on Use of Data. Customer will not, and will not allow any
other person or entity to: (a) modify, alter, reverse engineer, decompile or
otherwise translate any Services, in whole or in part; (b) loan, sell, rent,
sublicense, assign, distribute, publish, transfer or otherwise make available
to any person or entity any Services or any portion of Customer’s rights and
obligations under this Agreement; (c) use the Services to provide data
processing services, office services, time-sharing operation or similar
services of any kind to any person or entity; (d) copy, print, transfer,
transmit or display all or any portion of the Services; (e) merge all or part
of the Services into other computer programs or databases; or (f) store,
record, extract, reproduce, or archive the content of the Services. Customer
will not provide to any other person or entity access to the Services without
TI’s prior written consent in each instance.
6. Data Security; Links.
a. TI and its licensors use data security
systems and procedures in an effort to protect Data from unauthorized use,
access, disclosure, distribution, loss or alteration. Notwithstanding those
efforts, Customer understands and acknowledges that Data and other information
TI and its licensors maintain or that Customer accesses over the internet may
be hacked, intercepted, or altered.
b. The Data may contain links to third-party Web
sites or resources. Links to such Web sites or resources do not imply any
endorsement by TI or any TI affiliate of such Web sites or resources or the
content, products, or services available from such Web sites or resources.
Customer acknowledges and agrees that neither TI nor any of its affiliates is
responsible or liable for: (i) the availability or
accuracy of such Web sites or resources; or (ii) the content, products, or
services on or available from such Web sites or resources. Customer has sole
responsibility for, and assumes all risk arising from, Customer’s access or use
of any such Web sites or resources.
c. Customer will not disclose or provide to a
third party any Confidential Information (defined below) or Data, including all
source code, even if such Data is combined with other Data and/or de-identified
or aggregated. During the Term and any other period during which Customer is in
possession of any Confidential Information or other Data, Customer will ensure
that the Data will remain secure on Customer’s websites and will implement any
and all tools complying with the best industry standards for website data
protection to prevent the extraction or copy of the contents of its websites,
including a tool for detecting robots, a limit on the volume of requests
received, user identification, and anti-save protection measures for
d. Customer and TI will each implement and
maintain reasonable data backup and disaster recovery procedures and activities
in accordance with applicable law and industry best practices. Within 60 days
after the termination of this Agreement for any reason, Customer shall destroy
all Data in its possession, custody, or control and deliver to TI a certificate
executed by an officer of Customer certifying that it has completed such data
7. Customer’s Obligations. Customer will: (a) respond promptly to any TI
request to provide direction, information, approvals, authorizations, or
decisions that are reasonably necessary for TI to perform Services and (b)
provide complete and accurate Customer materials and information as TI may
request from time to time in order to perform Services. Customer is solely
responsible for determining whether and how to use any Data or other
information Customer receives through the Services.
8. Default; Termination; Effect of Termination.
a. If either party (the breaching party) commits
a material breach of this Agreement and does not cure that breach within 30
days after the non-breaching party gives the breaching party written notice of
such breach (10 days in the case of Customer’s failure to pay any amount due),
the non-breaching party will be entitled to terminate this Agreement and to
pursue all of its other rights and remedies at law and in equity, subject to
Section 11, Section 12, and other provisions of this Agreement.
b. TI may also terminate this Agreement before
the expiration date of the Term by giving Customer written notice of
termination, if Customer becomes insolvent, files a petition for bankruptcy or
commences or has commenced against it proceedings relating to bankruptcy,
receivership, reorganization or assignment for the benefit of creditors. TI may
terminate this Agreement for its convenience at any time by giving Customer 30
days prior written notice.
c. On the expiration or termination of this
Agreement: (i) all outstanding amounts payable by
Customer to TI shall immediately become due and payable; (ii) all rights and
licenses granted to Customer pursuant to this Agreement, including Customer’s
right to access and use the Data, will cease automatically; and (iii) Customer
will immediately cease all access and use of the Data. Customer will remain
obligated to pay TI all amounts due for Services TI provides before the
effective date of any expiration or earlier termination.
To and Use of Customer Data and Information. Customer acknowledges that in connection with
TI’s provision of the Services, TI will collect information relating to
Customer and Customer’s use of the Services, including contact information
name, address, business name, business role, clicks, time spent using the
Services, and other information (collectively, “Customer Data”). TI and its
affiliates may use and share with others all Customer Data and other
information. By accepting this Agreement, Customer agrees consents to such use
and sharing of Customer Data.
10. Confidential Information.
a. “Confidential Information” means all
of TI’s and its affiliates’ and licensor’s (collectively, “Discloser”):
(i) information, documents and records describing or
relating to their respective businesses, operations, and strategies; (ii)
software, applications, application services, information technology, and other
technology, whether owned, licensed or provided as a service, relating to any
of the foregoing; (iii) all trade secrets; (iv) all information, documents, and
records designated as being “confidential” or “proprietary;” and (v) all IP
Rights in any Data. All of the foregoing shall be Confidential Information
whether or not marked “confidential”, whether or not in oral, written,
electronic or other form.
b. Customer will: (i)
protect and safeguard the confidentiality of Discloser’s Confidential Information
with at least the same degree of care as Customer would protect its own
Confidential Information, but in no event with less than reasonable care; (ii)
not use Discloser’s Confidential Information, or permit it to be accessed or
used, for any purpose other than to exercise its rights or perform its
obligations under this Agreement; and (iii) not disclose any such Confidential
Information to any person or entity, except to Customer’s directors, officers,
and employees who have a need to know in order to assist Customer to exercise
its rights or perform its obligations under this Agreement. If Customer is
required by applicable law or legal process to disclose any Confidential
Information, Customer will give TI prompt, prior written notice of such required
disclosure and provide reasonable assistance to TI and any Discloser in
connection with any actions to prevent or limit such disclosure.
c. Within 10 days after the expiration or
earlier termination of this Agreement, Customer will destroy or return to Discloser
all Confidential Information, including all electronic and other copies of any
Confidential Information, and Customer will promptly certify to Discloser in
writing that it has done so.
11. Disclaimer of Warranties. TI, ON BEHALF OF ITSELF AND ITS AFFILIATES,
MAKES NO REPRESENTATIONS AND WARRANTIES OF ANY KIND, STATUTORY OR OTHERWISE,
REGARDING OR RELATING TO SERVICES OR DATA. TI, ON BEHALF OF ITSELF AND ITS
AFFILIATES, DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, STATUTORY, EXPRESS,
IMPLIED AND OTHERWISE, WRITTEN OR ORAL, WITH RESPECT TO (A) THE SERVICES AND
DATA, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND (B) THE QUALITY, FUNCTIONALITY,
OPERABILITY, AVAILABILITY, ACCURACY, USE, OR PERFORMANCE OF SERVICES OR DATA,
WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF
TRADE OR OTHERWISE. NEITHER TI NOR ITS AFFILIATES REPRESENT OR WARRANT THAT
SERVICES OR DATA ARE FREE OF ERRORS OR OF VIRUSES OR OTHER MALICIOUS CODE
ORIGINATING FROM THIRD PARTIES. CUSTOMER EXPRESSLY AGREES THAT ITS ACCESS AND
USE OF THE SERVICES THROUGH THE INTERNET IS AT CUSTOMER’S SOLE RISK.
12. Limitation of Liability.
a. IN NO EVENT WILL TI OR ANY OF ITS AFFILIATES
BE LIABLE TO CUSTOMER OR ANY PERSON OR ENTITY FOR ANY DIRECT, INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF
OR RELATING TO THE SERVICES OR DATA, OR CUSTOMER’S ACCESS OR USE OF THE
SERVICES OR DATA, REGARDLESS OF THE THEORY OF RECOVERY, WHETHER SUCH DAMAGE WAS
FORESEEABLE, WHETHER TI OR AN AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, OR THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
b. TI’S MAXIMUM AGGREGATE LIABILITY UNDER THIS
AGREEMENT OR WITH RESPECT TO ANY SERVICES OR DATA OR THE ACCESS OR USE (OR
INABILITY TO USE) OF ANY OF THEM, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT
LIABILITY OR OTHERWISE, SHALL NOT EXCEED 10% OF THE AGGREGATE FEES CUSTOMER HAS
PAID TI IN THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING
RISE TO THE CLAIM.
13. Force Majeure. TI will not be liable or responsible to
Customer or be deemed to have defaulted under or breached this Agreement for
any failure or delay to perform any term of this Agreement when and to the
extent such failure or delay is caused by or results from acts or circumstances
beyond the reasonable control of TI, including acts of God, acts and omissions
of any governmental authority, declared or undeclared wars, terrorism,
explosions, accidents, strikes, or other labor disputes, fires, and natural
calamities (including floods, earthquakes, storms, and epidemics),
telecommunication or internet failures, computer or network breakdowns, power
outages, changes in law or regulations, delays in obtaining (or the inability
to obtain) labor, data or services through usual sources at normal prices.
14. Dispute Resolution.
a. If any dispute arises out of or in connection
with this Agreement, or a breach of this Agreement, between Customer and TI
(each, a “Dispute”), the party wishing to declare a Dispute will
deliver to the other party a written notice identifying the disputed issue.
Following delivery and receipt of a notice of Dispute, executives of both
parties will meet at a mutually acceptable time and place within 15 days after
receipt of such notice and thereafter as often as they reasonably deem
necessary, to exchange relevant information and to attempt to resolve the
b. If the matter has not been resolved in the
aforementioned manner within 15 days after negotiations commenced, or if the
parties fail to meet within 15 days as required above, the dispute shall be
settled exclusively by binding arbitration under the Rules of Arbitration of
the International Chamber of Commerce then in effect. The arbitral award shall
be final and binding on all parties and may be entered and enforced by any
court having jurisdiction. The arbitration shall be conducted in Charlotte,
North Carolina, USA in the English language before a panel of three
arbitrators. Any award shall be in United States dollars and shall be in the
English language. The prevailing party shall be eligible to receive its costs
and fees which may be awarded in the discretion of the arbitrators. The parties
agree that the United States Federal Arbitration Act, 9 USC §1 et seq., shall
apply to this Agreement and all disputes relating to it.
15. Notices. Any notice required or permitted to be given under this Agreement shall
be in writing and shall be delivered by (i) hand,
(ii) certified or registered mail, return receipt requested, or (iii) FedEx (or
similar international overnight delivery service), in each case with
confirmation of receipt requested, to the appropriate party at the appropriate
address below. Either party may change its
notice address by giving the other party written notice in accordance with this
If to Customer
Address Stated on Customer’s Application
16. Relationship of the Parties. The parties are independent contractors and
have no power or authority to assume or create any obligation or responsibility
on behalf of each other. This Agreement will not be construed to create or
imply any partnership, agency, joint venture, or employer-employee relationship
between the parties. TI will determine the method, details and means of
performing the Services.
17. Waivers; Remedies; Amendments. No delay or failure by a party in exercising
or enforcing any of its rights or remedies will constitute a waiver of such rights
or remedies. The express waiver of any right or remedy in a particular instance
will not constitute a waiver of that right or remedy in any other instance.
Except as otherwise provided herein, all rights and remedies will be cumulative
and not exclusive of any other rights or remedies at law or in equity or
otherwise. No amendment, waiver or discharge of any provision of this Agreement
will be effective unless made in writing and signed by both parties.
18. Third-Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon or give to any
person, entity, company or organization, other than the parties, any right,
remedy, cause of action or claim under or by reason of this Agreement or any
term or provision hereof, all of which shall be for the sole and exclusive
benefit of the parties.
19. Severability; Survival. If any provision of this Agreement is held
invalid, illegal or unenforceable by any court of competent jurisdiction, then
to the full extent permitted by applicable law, all other provisions of this
Agreement will remain in full force and effect. Section 4 of the
Agreement and Sections 4, 5, 11 through 13 and Sections
15 through 20 of these Terms and Conditions will survive the
termination of this Agreement for any reason.