- 1.1 Capitalized terms not defined in these ALG Terms and Conditions shall have the meaning given to them in the Order Form.
- 1.2 “Agreement” means collectively these ALG Terms and Conditions and the Order Form
- 1.3 “Order Form” means the Order Form entered into by ALG and Client, which by its terms is subject to these ALG Terms and Conditions and, among other items, sets forth the ALG Deliverables and the Fees therefore.
- 1.4 “Party” means each of ALG and Client; “Parties” means collectively ALG and Client.
2. DELIVERY AND UPDATES
2.1 Subject to the Agreement, including, ALG’s receipt of payment of the Fee(s) as set forth in the Order Form, ALG shall deliver to Client the ALG Deliverable(s) at the time periods set forth in the Agreement.
2.2 ALG Deliverables may be subject to receipt from Client of Client data and/or information (collectively, "Client Data") by a certain date (“Information Requirements Date”), all of which may be set out in the Order Form. Client agrees to provide the Client Data by the Information Requirements Date. If some or all of the Client Data is not received by ALG by the Information Requirements Date, ALG may use its assumptions to provide the ALG Deliverables. Subject to potential additional fees and the changing of ALG Deliverables delivery dates, ALG, at its option, may accept Client Data after the Information Requirements Date.
2.3 ALG may, solely at its option, modify, change or enhance the ALG Deliverable(s).
3.1 In consideration of ALG’s provision of the ALG Deliverables hereunder, Client shall pay the Fees specified in the Order Form. Fees do not include taxes or any government imposed surcharges, which are the sole responsibility of Client.
3.2 Payment for all fees due to ALG under the Agreement are due thirty (30) days after date of invoice or as otherwise set forth on the Order Form (the “Due Date”), If Client fails to pay any amount due by the Due Date, late charges of the lesser of 1½% per month or the maximum allowable under applicable law shall also become due and payable until the full amount due is paid. Client shall be liable for all collection agency fees and reasonable attorneys’ fees payable by ALG in connection with enforcing Client’s performance of its payment obligations set forth in the Agreement.
4.1 Except for ALG Materials, Client owns all right, title and interest in and to the content of the ALG Deliverables; provided that Client shall disclose the ALG Products within the ALG Deliverables only to Permitted Recipients, subject to the use restrictions as to Permitted Recipients set forth in Section 6 below, and only for their internal use. ALG owns all right, title and interest in and to the ALG Materials. “ALG Materials” means (i) ALG Trademarks (defined below), (ii) all original and/or third-party data, except Client Data, ALG utilizes in relation to the ALG Deliverables, (iii) the methodologies and procedures of ALG utilized by ALG in creating the ALG Deliverables, or otherwise, including the format of the ALG Deliverables, and (iv) the ALG Products. “ALG Products” means the Brand Pricing Score-Used, the Brand Perception of Quality, Transaction Price Analysis, Advance Residual, ALG Stress Test, Anticipated Demand Curve, Expedited Launch Residual (Special Quote), Statistical Brand Value, Perceived Quality Score, Brand Score Card, Segment Sales Analysis, Sales Forecast Analysis, and similar products of ALG.
4.2 Copyright Notice. Client shall display the following copyright and ownership notice on each page of the ALG Deliverables: “© [current year] ALG, Inc. All rights reserved’.
5.1 On-line Access. Subject to the Agreement, ALG hereby grants Client during the Term a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access, if applicable, the on-line means provided by ALG to Client for Client to receive the ALG Deliverables (the “On-line Access”). Client agrees to utilize the On-line Access only pursuant to the requirements of ALG, which requirements may change in ALG’s sole discretion. In connection with the On-line Access, Client is responsible for (i) providing its own equipment and internet connectivity, at Client’s own expense, (ii) providing access only to Permitted Recipients pursuant to the terms of the Agreement, and (iii) properly safeguarding and keeping confidential any user identifications and/or passwords. Client is solely responsible for any unauthorized use of the On-Line Access due to Client or Permitted Recipients acts and/or omissions.
5.2 Trademarks. a. Client shall display one of the approved (by ALG) ALG trademarks provided by ALG to Client (“ALG Trademarks”) on each page of the ALG Deliverable(s). Subject to the terms and conditions of the Agreement, ALG hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to use the ALG Trademarks as set forth in the immediately preceding sentence. ALG shall retain the right to use the ALG Trademarks and to license their use to any other designee. ALG may modify or update the ALG Trademarks from time to time. Client shall implement and use any update to any ALG Trademarks within a reasonable time after receipt of a copy of the updated ALG Trademark from ALG (but in no event more than four (4) business days after receipt), and shall immediately stop usage of an ALG Trademark (i) upon request from ALG, and/or (ii) upon termination of the Agreement. Client acknowledges ALG’s exclusive right, title and interest in and to the ALG Trademarks and any registration that may issue or may have issued thereon. Client shall not in any manner represent that it has any ownership in the ALG Trademarks or registrations thereof. Client and ALG agree that Client’s use of the ALG Trademarks shall inure to the benefit of ALG. b. Client grants ALG a perpetual license to utilize Client’s name and/or trademarks in connection with the ALG Deliverables.
5.3 Client grants ALG and its affiliates a non-exclusive perpetual license to utilize Client Data for ALG and ALG affiliates’ products and services.
6. CONFIDENTIALITY. “ALG Confidential Information” means any information disclosed by ALG to Client, either directly or indirectly, in writing, orally, or by inspection of tangible objects. Without limiting the generality of the foregoing, ALG Confidential Information includes the terms of the Agreement, ALG Materials, and information as to ALG’s suppliers, business processes and methodologies, and may also include information disclosed to ALG by third parties. “Client Confidential Information” means any information disclosed by Client, either directly or indirectly, in writing or by inspection of tangible objects, that are designated as “Confidential”, “Proprietary,” or some similar designation. “Confidential Information” means ALG Confidential Information and/or Client Confidential Information in context as applicable to the receiving or disclosing Party. Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. The receiving Party will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing Party (except to disclose or make available, (1) in Client’s case, to its parent company and its/their employees, advertising agencies, consultants, accountants, and attorneys who have a legitimate need to know such Confidential Information (collectively, “Permitted Recipients”), provided that failure of a Permitted Recipient to use and/or not disclose ALG Confidential Information in the same manner as required of Client pursuant to the Agreement constitutes a breach of the Agreement by Client and (2) in ALG case, ALG, its affiliates, and its and their officers, directors, consultants, contractors, agents, attorneys, and employees), or (b) use, reproduce, or copy any Confidential Information of the disclosing Party, except as necessary in connection with or as set forth in the Agreement. The disclosing Party will retain all right, title and interest in and to its Confidential Information. All documents, electronic media, and other items or portions thereof which contain Confidential Information of the disclosing Party will be delivered to the disclosing Party promptly upon the disclosing Party’s written request. Notwithstanding the foregoing, ALG will not be required to remove copies of Client’s Confidential Information from any backup media or servers. The receiving Party may disclose Confidential Information of the disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law; provided that the receiving Party provides the disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect such Confidential Information from public disclosure; and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding the foregoing, Client may disclose the terms and conditions of the Agreement: (w) as required by the applicable securities laws, including requirements to file a copy of the Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities, (x) in confidence, to legal counsel; (y) in confidence, to accountants, banks, and financing sources and their advisors who are subject to reasonable confidentiality restrictions; and (z) in connection with the enforcement of the Agreement or any rights hereunder.
7. WARRANTY. ALG represents, warrants and covenants that (i) subject to the next sentence of this Section 7, it has all rights to provide the ALG Deliverables to Client as set forth in the Agreement and (ii) the ALG Materials within the ALG Deliverables do not infringe, misappropriate, and/or breach any copyright or privacy right of any third party. Client represents, warrants and covenants that (1) it has all rights to provide the Client Data to ALG as set forth in the Agreement, (2) the Client Data does not infringe, misappropriate, and/or breach any copyright or privacy right of any third party, and/or (3) the Client Data, when provided by Client to ALG, and the media on which the Client Data is provided to ALG by Client, when provided by Client to ALG, will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other routine that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any information system(s). EXCEPT FOR THAT WHICH IS SET FORTH IN THE PRECEDING TWO SENTENCES, THE ALG DELIVERABLES, ALG MATERIALS, ALG PRODUCTS, ALG TRADEMARKS, ON-LINE ACCESS, AND CLIENT DATA ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND THE OTHER PARTY’S USE THEREOF IS AT THE OTHER PARTY’S OWN RISK, AND EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. INDEMNIFICATION. Each Party (“Indemnifying Party”) indemnifies, defends and holds harmless the other Party (“Indemnified Party”) and the Indemnified Party’s affiliates, and the Indemnified Party’s and the Indemnified Party’s affiliates’ officers, employees, directors, owners, contractors, agents, representatives, successors and assigns (each an “Indemnitee”) from and against any and all claims, whether actual or alleged, that arise out of or are in connection with the Indemnifying Party’s breach of Section 7, above, of these ALG Terms and Conditions (collectively, “Claims”). The Indemnifying Party is solely responsible for defending any Claim against any Indemnitee (subject to such Indemnitee’s right to participate with counsel of its own choosing, at its own expense), and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including, without limitation, reasonable attorneys’ fees, resulting from all Claims against an Indemnitee; provided that Indemnifying Party will not agree to any settlement that imposes any obligation or liability on an Indemnitee without the Indemnitee’s prior express written consent.
9. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6, ABOVE, CLIENT’S OR A PERMITTED RECIPIENT’S BREACH AND/OR VIOLATION OF THE USE RESTRICTIONS SET FORTH IN SECTION 4 ABOVE, CLIENT’S BREACH OF SECTION 5 ABOVE, AND/OR A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, ABOVE, (i) IN NO EVENT WILL CLIENT AND/OR ALG BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, AND (ii) SUBJECT TO SUBSECTION (i) OF THIS SECTION 9, IN NO EVENT SHALL THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY OF ANY KIND PURSUANT TO THE AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID OR OWED TO ALG UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
10. TERM AND TERMINATION.
10.1 Term: The Term of the Agreement will commence on the Effective Date set forth on the Order Form and will continue as set forth in the Order Form, unless sooner terminated pursuant to Section 10.2 below.
10.2 Termination. Either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material provision of the Agreement and such breach is not cured within thirty (30) days after written notice thereof is received by the other Party; provided that ALG shall not be required to give Client any advance notice or cure period prior to terminating the Agreement or suspending all or part of the provisioning of ALG Deliverables because of Client's or a Permitted Recipient’s breach and/or violation of the use restrictions or confidentiality obligations set forth in Sections 4 or 6, above, of these ALG Terms and Conditions. In addition, ALG may terminate the Agreement or suspend the provisioning of the ALG Deliverables, in whole or in part, with or without cause, upon giving the Client at least one (1) day prior written notice of such termination or suspension. Also, the Agreement shall be terminated as to a particular Order Form by the Parties entering into a new Order Form relating to the same subject matter.
11. SURVIVAL. All defined terms, and Sections 1, 3, 4, 5.2, 5.3, 6 through 9, 10.3, and 11 through 14 of these ALG Terms and Conditions, survive the termination or expiration of the Agreement.
12. NOTICES. All notices will be in writing, and delivered by nationally recognized overnight courier or mailed, first-class postage prepaid, or sent by facsimile with confirmation of transmission, to the recipients as follows: (i) to ALG at: ALG, Inc., 120 Broadway, Suite 200, Santa Monica, CA 90401, Attn: General Counsel; with a copy to: TrueCar, Inc., 120 Broadway, Suite 200, Santa Monica, CA 90401, Attn: General Counsel; and (ii) to Client at the address set forth in the Order Form. All notices will be deemed received as follows: (a) one (1) business day after accepted by a nationally recognized overnight carrier service for next business day delivery, or (b) five (5) days after the day deposited with the United States Postal Service. Either Party may update its notice address by sending written notice of such change to the other Party as set forth in this Section 12.
13. GOVERNING LAW, VENUE. The Agreement and any claim arising under the Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles. Each party hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California, for all disputes and litigation arising under or relating to the Agreement. Client acknowledges that all of the ALG Materials, the ALG Trademarks, the On-Line Access, and ALG Confidential Information are the unique property of ALG, and any unauthorized use thereof will cause ALG irreparable harm that may not be adequately compensated by monetary damages. Accordingly, Client agrees that ALG will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief, without necessity of posting a bond, to enforce the terms of the Agreement, including to prevent any actual or threatened unauthorized use and/or sublicensing of ALG Confidential Information, the ALG Trademarks, the On-Line Access, and/or the ALG Materials, or any information or data contained therein or obtained therefrom.
14. MISCELLANEOUS. The Agreement constitutes the entire agreement and understanding between Client and ALG regarding the subject matter contained herein and supersedes all agreements, understandings, negotiations, representations, claims, proposals, sales and/or marketing materials, and communications in all forms of media, written and oral, regarding the subject matter contained herein. Without limiting the preceding sentence, any terms and conditions of, on or attached to any purchase order and/or similar document of Client, whether signed or offered before or after the Effective Date, are of no force and effect and are void ab initio. Only a written instrument signed by whichever of Client or ALG is entitled to waive such compliance may waive any term(s) and/or condition(s) of the Agreement, and the Agreement shall not be amended and/or modified except by a writing signed by both Parties. No waiver by either Client or ALG of any provision hereof will be deemed a waiver of any other breach of such provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. Except for payment obligations set forth in Section 3 above, neither Client nor ALG will have any liability under the Agreement by reason of any failure or delay in the performance of Client’s or ALG’s, as the case may be, obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond, as applicable, Client’s or ALG’s reasonable control. Client and ALG are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture relationship between Client and ALG. Except as otherwise set forth in the Agreement, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Neither ALG nor Client may assign, sublicense or transfer the Agreement or any right or duty under the Agreement to another party, in whole or in part, without, as applicable, ALG’s or Client’s prior written consent; provided however, each of ALG and Client may assign the Agreement without the consent of the other Party in connection with its reorganization, reincorporation, consolidation, merger, or sale of all or substantially all of its assets or stock. ALG and Client’s rights and obligations under the Agreement will bind and inure to the benefit of their permitted successors and assigns. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 14 will be void and of no force or effect. Any rights not expressly granted in the Agreement are reserved by Client or ALG, as applicable, and all implied licenses are disclaimed. Each Party acknowledges that it has had the opportunity to review the Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter, and no presumptions made or inferences drawn because of the inclusion of a term not contained in a prior draft or the deletion of a term contained in a prior draft. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of this Agreement. All Section references in these ALG Terms and Conditions are references only to the respective Section in these ALG Terms and Conditions. All definitions apply both to their singular and plural forms, as the context may require. As used in the Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. Executed counterparts of the Agreement will each be deemed originals, whether exchanged via mail, facsimile, via pdf, or electronically. These ALG Terms and Conditions were last updated on and are effective as of August 11, 2017.