- 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 Licensee, which by its terms is subject to these ALG Terms and Conditions and, among other items, sets forth the ALG Deliverables, Fees therefore, and Term.
- 1.4 “Party” means each of ALG and Licensee; “Parties” means collectively ALG and Licensee.
2.1 Subject to the terms and conditions of this Agreement, including Section 2.1.1 below, ALG hereby grants Licensee during the Agreement Term (defined in Section 10.1 below) a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to the ALG Deliverable(s), in the United States and Canada only, solely for (i) Licensee’s internal use to support Licensee’s internal residual forecasting, (ii) Licensee’s issuance of ALG’s Deliverables only as permitted by Section 2.1.1 below (“Licensee Leasing Program”), and (iii) Licensee’s software set forth in the Order Form (“Licensee Software”).
2.1.1 Prohibited Uses. Subject to this Section 2.1.1, Licensee agrees to use each ALG Deliverable only as expressly set forth in Section 2.1 above. Licensee will not, without obtaining ALG’s prior written consent: (i) publish, distribute or otherwise make available ALG Deliverables except internally or as an integral part of the Licensee Leasing Program, provided that distribution of the Licensee Leasing Program shall be limited strictly to automobile dealers currently enrolled with, or (for a limited use period of no more than thirty (30) days) being solicited for enrollment in, the Licensee Leasing Program (“Licensee’s Authorized Users”), which Licensee’s Authorized Users shall only use the ALG Deliverables as an integral part of the Licensee Leasing Program only for their internal use; (ii) use the ALG Deliverables to create other residual values for automobiles, except for the varying and additional residual values prepared by Licensee for its own internal programs which shall in no way be represented to be those of ALG, but which are acknowledged to be derivative works based on the ALG Deliverables; (iii) provide a copy of all or part of the ALG Deliverables to a third party vendor for any purpose; (iv) publish, distribute or otherwise make available all or any portion of the ALG Deliverables on or over the Internet, or otherwise, (v) reverse engineer, disassemble, reconstruct, and/or decompile the ALG Deliverables, or any aspect or portion thereof, and/or (vi) notwithstanding any other provision of this Agreement, publish, distribute or otherwise made available any historical or non-current ALG Deliverables (or modification thereof), including, but not limited to any compilation or database containing any of the foregoing.
2.2 On-line Access. ALG hereby grants Licensee during the Agreement Term a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access, if applicable, the on-line means provided by ALG to Licensee for Licensee to receive the ALG Deliverables (the “On-line Access”). Licensee 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, Licensee is responsible for (i) providing its own equipment and internet connectivity, at Licensee’s own expense, (ii) providing access only to its employees permitted under and pursuant to the terms of this Agreement, and (iii) properly safeguarding and keeping confidential any user identifications and/or passwords.
2.3 Trademarks. a. Licensee shall display one of the approved (by ALG) ALG trademarks provided by ALG to Licensee (“ALG Trademarks”) on each page (whether web or otherwise, or on Licensee Software) that any of the ALG Deliverable(s) are displayed, and Licensee shall obtain the prior written approval of ALG in each instance. Subject to the terms and conditions of this Agreement, ALG hereby grants to Licensee during the Agreement Term a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to use the ALG Trademarks as set forth in the immediately preceding sentence in the United States and Canada only. 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. Licensee shall implement and use any update to the ALG Trademarks within a reasonable time after receipt of a copy of any updated ALG Trademarks 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 this Agreement. Licensee 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. Licensee shall not in any manner represent that it has any ownership in the ALG Trademarks or registrations thereof. Licensee and ALG agree that Licensee’s use of the ALG Trademarks shall inure to the benefit of ALG. b. Licensee grants ALG a perpetual license to utilize Licensee’s name and/or trademarks in connection with the ALG Deliverables and ALG’s products and services.
2.4 Licensee grants ALG and its affiliates a non-exclusive perpetual license to utilize Licensee’s data and information for ALG and ALG affiliates’ products and services.
3. DELIVERY AND UPDATES
3.1 Upon execution of this Agreement and ALG’s receipt of payment of the applicable license fee as set forth in the Order Form, ALG shall deliver to Licensee the applicable ALG Deliverable(s), unless a different time period for delivery is set forth in the Order Form.
3.2 ALG may, solely at its option, modify, change or enhance the ALG Deliverable(s).
4.1 In consideration of ALG’s provision of the ALG Deliverables hereunder, Licensee 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 Licensee.
4.2 Payment for all fees due to ALG under this Agreement are due if (i) pursuant to invoice, thirty (30) days after date of invoice, or (ii) pursuant to credit card, the earlier of when the credit card payment is made or is to be made (collectively, subsections (i) and (ii) in this sentence are the “Due Date”). If Licensee fails to pay any amount due by the Due Date, late charges of the lesser of 1½% of any outstanding amounts per month or the maximum allowable under applicable law shall also become due and payable until the full amount due is paid. Licensee shall be liable for all collection agency fees and reasonable attorneys’ fees payable by ALG in connection with enforcing Licensee’s performance of its payment obligations set forth in this Agreement.
4.3 If ALG requests, and Licensee utilizes a credit card accepted by ALG to pay for the ALG Deliverables, Licensee authorizes ALG to bill Licensee’s credit card for any and all charges and fees Licensee incurs in connection with ALG Deliverables, including, but not limited to recurring payments. Licensee shall keep its credit card information on file with ALG current (such as, but not limited to address, card number, and expiration date), and Licensee authorizes ALG to update Licensee’s credit card information with data ALG obtains from Licensee’s financial institution, the issuer of Licensee’s credit card, and/or from MasterCard, Visa, American Express, Discover, or similar entities. Unless and until ALG discontinues accepting Licensee’s credit card, Licensee’s preauthorizes for billing by ALG Licensee’s credit card and Licensee authorizes ALG to retain Licensee’s credit card information. ALG reserves the right at any time to modify, suspend, or terminate Licensee’s right to pay by credit card. Any such modification, suspension, or termination, or Licensee’s failure for any or no reason to pay by credit card, has no effect on Licensee’s liability for charges and fees that Licensee has incurred in connection with Licensee’s use of ALG Deliverables.
5.1 Ownership. ALG retains all right, title and interest, including, but not limited to all copyright, patent, trade secret, trademark, and any other intellectual property rights, in and to the ALG Deliverable(s), the ALG Trademarks, and the On-line Access, and including, but not limited to all updates, derivative works and modifications thereto. Licensee shall gain no right, title or interest in the ALG Deliverable(s), the ALG Trademarks, and/or the On-Line Access by virtue of this Agreement, other than the non-exclusive licenses granted hereunder.
5.2 Copyright Notice. Licensee shall display the following copyright and ownership notice on each page of any document (whether on-line or otherwise) or Licensee Software containing any ALG Deliverable(s): “© [current year] ALG, Inc. All rights reserved.”
6. CONFIDENTIALITY. “ALG Confidential Information” means any information disclosed by ALG to Licensee, 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 and ALG Deliverables, and may also include information disclosed to ALG by third parties. “Licensee Confidential Information” means any information disclosed by Licensee, either directly or indirectly, in writing or by inspection of tangible objects, that is designated as “Confidential”, “Proprietary,” or some similar designation. “Confidential Information” means ALG Confidential Information and/or Licensee 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 disclose, sell, license, transfer, use, access, reproduce, copy, or otherwise make available to any person or entity any Confidential Information of the disclosing Party (except to disclose or make available, (a) in Licensee’s case, to (1) employees of Licensee who have a legitimate need to know such Confidential Information for the purposes set forth in this Agreement, and (2) third party service providers of Licensee approved by ALG in writing who are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement and who have a legitimate need to know such Confidential Information for the purposes set forth in this Agreement, and (b) in ALG case, ALG, its affiliates, and its and their officers, directors, consultants, contractors, agents, attorneys, and employees). The disclosing Party will retain all right, title and interest in and to its Confidential Information. All documents, electronic media, and other tangible 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 Licensee 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, Licensee may disclose the terms and conditions of this Agreement: (w) as required by the applicable securities laws, including requirements to file a copy of this 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 this Agreement or any rights hereunder.
7. WARRANTY. THE ALG DELIVERABLES, ALG TRADEMARKS, AND ON-LINE ACCESS, ARE EACH PROVIDED BY ALG “AS IS,” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND LICENSEE’S USE THEREOF IS AT ITS OWN RISK, AND ALG DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8. INDEMNIFICATION. Licensee indemnifies, defends and holds harmless ALG and ALG’s affiliates, and ALG’s and ALG’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 (collectively, “Claims”), that arise out of or are in connection with (i) Licensee’s and/or any Licensee Authorized User’s use of the ALG Deliverables, the ALG Trademarks, and/or the On-Line Access, (ii) any breach of this Agreement by Licensee, and/or a violation of the law by Licensee in relation to this Agreement, and/or (iii) any act or omission of Licensee and/or Licensee’s Authorized User(s) in relation to this Agreement. Licensee 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 Licensee 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, LICENSEE’S BREACH OF SECTIONS 2 AND 5, ABOVE, AND LICENSEE’S INDEMNIFICATION OBLIGATIONS IN SECTION 8, ABOVE, (i) IN NO EVENT WILL LICENSEE 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 ALG’S AGGREGATE TOTAL LIABILITY OF ANY KIND PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO ALG UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
10. TERM AND TERMINATION.
10.1 Term: Subject to any Renewal Periods as set forth below, the Term of this 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. Thereafter, this Agreement will automatically renew for successive twelve (12) month periods (each a “Renewal Period”), unless Licensee gives written notice of its election not to renew at least forty-five (45) days prior to the end of the Term, or if applicable, the then current Renewal Period, unless this Agreement is sooner terminated pursuant to Section 10.2 below. The Term and all Renewal Periods (if any) noted in this Section 10.1 are referred to collectively as the “Agreement Term”.
10.2 Termination. Either Party may terminate this Agreement by written notice to the other Party if the other Party breaches any material provision of this 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 Licensee any advance notice or cure period prior to terminating this Agreement or suspending all or part of the provisioning of ALG Deliverables because of Licensee's breach of Sections 2, 4 and/or 5 of these ALG Terms and Conditions. In addition, ALG may terminate this Agreement or suspend the provisioning of the ALG Deliverables, in whole or in part, with or without cause, upon giving the Licensee at least one (1) day prior written notice of such termination or suspension. Also, this 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.
10.3 Rights Upon Termination. Upon termination or expiration of this Agreement for any reason, (i) the rights and licenses granted to Licensee hereunder shall immediately and automatically terminate, and (ii) unless ALG requests the destruction thereof, Licensee shall immediately return to ALG all Confidential Information of ALG, the ALG Trademarks, and the ALG Deliverable(s), including any updates, copies, derivative works, modifications and improvements thereto. In the event ALG requests the destruction of the foregoing, Licensee shall certify to ALG in writing the destruction of all Confidential Information of ALG, the ALG Trademarks and the ALG Deliverable(s).
11. SURVIVAL. All defined terms, and Sections 1, 2.3 (a) (sixth, seventh and eighth sentences only), 2.3(b), 2.4, 4 through 9, 10.3, 11, 12 (last sentence only), and 13 through 15 of these ALG Terms and Conditions, survive the termination or expiration of this Agreement.
12. MARKETING AND PRESS RELEASES. Subject to the respective Party’s prior written approval in each instance, each Party grants to the other the right to use its name and designated trademark in the other Party’s marketing efforts, sales presentations, press releases and statements to the media. Once approval has been granted, should either Party later instruct the other Party to cease all use of its name or trademark in the marketing material at issue, the other Party will comply immediately. In addition, by providing its facsimile number set forth in the Order Form, Licensee agrees to receive facsimile correspondence and advertisements from ALG and affiliate companies.
13. 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; with a copy to: TrueCar, Inc., 120 Broadway, Suite 200, Santa Monica, CA 90401, Attn: General Counsel; and (ii) to Licensee 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 13.
14. GOVERNING LAW, VENUE, INJUNCTIVE RELIEF. This Agreement and any claim arising under this 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 this Agreement. Licensee acknowledges that all of the ALG Deliverable(s), the ALG Trademarks, the On-Line Access, and ALG’s 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, Licensee 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 this Agreement, including to prevent any actual or threatened unauthorized use and/or sublicensing of ALG’s Confidential Information, the ALG Trademarks, the On-Line Access, and/or the ALG Deliverable(s), or any information or data contained therein or obtained therefrom.
15. MISCELLANEOUS. This Agreement constitutes the entire agreement and understanding between Licensee and ALG regarding the subject matter contained herein and supersedes all agreements, understandings, negotiations, representations, claims, 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 Licensee, whether signed or offered before or after the Effective Date, are of no force and effect and void ab initio. Only a written instrument signed by whichever of Licensee or ALG is entitled to waive such compliance may waive any term(s) and/or condition(s) of this Agreement, and this Agreement shall not be amended and/or modified except by a writing signed by both Parties. No waiver by either Licensee 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 4 above, neither Licensee nor ALG will have any liability under this Agreement by reason of any failure or delay in the performance of Licensee’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, Licensee’s or ALG’s reasonable control. Licensee and ALG are independent contractors and nothing in this Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture relationship between Licensee 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 Licensee may assign, sublicense or transfer this Agreement or any right or duty under this Agreement to another party, in whole or in part, without, as applicable, ALG’s or Licensee’s prior written consent; provided however, both ALG and Licensee may assign this Agreement without the consent of the other Party in connection with the reorganization, reincorporation, consolidation, merger or sale of all or substantially all of the assets or stock of ALG, or Licensee (as the case may be). ALG’s and Licensee’s rights and obligations under this 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 15 will be void and of no force or effect. Any rights not expressly granted in this Agreement are reserved by Licensee or ALG, as applicable, and all implied licenses are disclaimed. Each Party acknowledges that it has had the opportunity to review this 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 the Agreement. 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 this Agreement will each be deemed originals, whether exchanged via mail, facsimile, or electronically in .pdf format. These ALG Terms and Conditions were last updated on and are effective as of August 11, 2017.