ShoppersON Terms of Service

These ShoppersON Terms of Service constitute a binding contract (the “Agreement”) between Clarivoy, Inc. (“Clarivoy”) and the Customer that has filled out an Order Form and placed the order (“you” or “Customer”) on the ShoppersON™ website. This Agreement takes effect as of the Effective Date (as defined below). Each party may be referred to as a “Party” and collectively as “Parties.”

1. Definitions.

1.1. “CRM” means computer software that is a Customer Relationship Management tool where the Customer holds the contact information for its Shoppers.

1.2. “Customer” means an individual dealership and includes a primary and secondary website for that dealership only. Group or Parent websites are not supported at this time.

1.3. “Customer Data” means any raw data or other information or materials Customer provides to Clarivoy.

1.4. “Customer Records” means the Customer’s sales and service records that include individuals who have purchased, leased or financed a new or used vehicle from the Customer or individuals who have serviced their vehicle with the Customer.

1.5. “Effective Date” means the date the Customer submits the Order Form.

1.6. “In-market Anonymous Shopper” means a Website Visitor that visits specific Customer website pages as determined by Clarivoy but does not self-identify during the Web Visit by filling out a lead form.

1.7. “Order Form” means the form filled out and submitted by Customer as set forth on the ordering page of the website [www.shopperson.com]

1.8. “Services” means the services offered by Clarivoy and selected by Customer as described in the order and this Agreement.

1.9. “Shopper” means an individual consumer.

1.10. “Shopper Types” is a collective term used to describe the individual shopper type categories Clarivoy classifies Website Visitors.

(a) An “Anonymous Conquest” is an In-market Anonymous Shopper who is not found in the Customer Records provided to Clarivoy.

(b) An “Anonymous Customer” is an In-market Anonymous Shopper who is found in the Customer Records provided to Clarivoy.

(c) A “Conquest Lead” is a Shopper that self-identifies and is not found in the Customer Records provided to Clarivoy or is a Shopper that self-identifies through a third party lead provider that is sent to the Customer’s CRM and is not found in the Customer Records provided to Clarivoy.

(d) A “Customer Lead” is a Shopper that self-identifies and is found in the Customer Records provided to Clarivoy or is a Shopper that self-identifies through a third party lead provider that is sent to the Customer’s CRM and is found in the Customer Records provided to Clarivoy.

1.11. “Clarivoy Tracking Code or Clarivoy’s Tracking Code” means a snippet of JavaScript code that Clarivoy will provide to the Customer to add to every page of the Customer’s website to collect the Customer’s website traffic information.

1.12. “Web Visit” means a unique website session as determined through Clarivoy’s Tracking Code.

1.13. “Website Visitor” means a person that visits your website.

2. Services.

2.1. Clarivoy will, to the extent it has relevant information, (1) enrich leads that are forwarded from the Customer’s CRM with additional contact and demographic information and provide this additional information along with the categorization of Conquest Lead or Customer Lead about the lead submitter both in the ShoppersON Dashboard and send the enriched lead to the Customer’s CRM via ADF XML; (2) provide additional contact and demographic information for Anonymous Customers found on the Customer’s website in the ShoppersON Dashboard; (3) provide a hash for Anonymous Conquest shoppers found on the Customer’s website for activation via another advertising method in the ShoppersON Dashboard.

2.2. Before the Services can begin, the Customer is responsible to (1) install Clarivoy Tracking Code on its website(s), (2) set up lead forwarding from their CRM and (3) upload up to five years of Customer sales and service records for the Initial Term and no more frequently than every six (6) months thereafter with new Customer Records data. Customer Records must include:

(a) Dealership name

(b) Date of sale or service

(d) Customer Name

(e) Street Address

(f) City

(g) State

(h) Zip

(i) Buyer Phone Number (Home, Work, and Mobile if each is available)

(j) Buyer Email Address(es)

(k) New or Used*

(l) Year

(m) Make

(n) Model

(o) VIN

(p) Co-Buyer Name*

(q) Co-Buyer Phone (Home, Work, and Mobile if each is available)*

(r) Co-Buyer Email Address(es)*

* If applicable

3. Changes.

(a) Clarivoy may make commercially reasonable changes to the Services from time to time. If Clarivoy makes a material change to the Services, Clarivoy will endeavor to provide at least thirty (30) days’ notice of the material changes.

(b) If the change has a material adverse impact on Customer, Customer will inform Clarivoy and Clarivoy will use reasonable efforts to provide a fix, and if Clarivoy is unable to do so, either Party may terminate the Agreement upon written notice without penalty. Customer shall remain liable for payment of service provided through the termination date.

4. Customer Obligations.

4.1. Use of the Services and Dashboard. Customer shall access and use the Services and its dashboard (“Dashboard”) strictly in accordance with the guidelines provided by Clarivoy.

4.2. Login; Security.

(a) Clarivoy will provide Customer access to the Dashboard through a unique user name and password (“Login”) that is individual to each member of Customer’s staff designated to have access (“End Users”). Therefore, Customer agrees it shall employ best practices to safeguard its Logins from loss, theft or misuse. Customer, and not Clarivoy, is responsible for any misuse of Customer’s account, even for any lost or stolen Login credentials.

(b) In no event may a Login be used by anyone other than the person to whom assigned.

(c) All End Users must agree to the End User License Agreement as part of the Login process in the form of a click-to-agree consent.

4.3. Relations with Advertisers and Publishers. Customer solely is responsible for managing the relationships with Customer’s advertisers, clients and/or media properties.

4.4. Content Restrictions. Customer’s content, advertising and business practices, and Customer’s target site practices shall not be deceptive, pornographic, hate-promoting, misleading, obscene, defamatory or otherwise illegal. Customer agrees to indemnify Clarivoy for any breach or violation of this Subsection.

4.5. Infrastructure. Customer shall be responsible for providing and maintaining all workstations, networks, and Internet connections necessary to access and use the Service. Clarivoy is not responsible for the quality and speed of Internet transmissions or the Customer’s CRM functionality and operation.

5. Pricing; Invoices; Payment Terms.

5.1. Fees. Customer agrees to pay the fees for the Services as set forth on the Order Form (“Fees”). The price stated for the Services excludes all applicable taxes and currency exchange settlements, unless stated otherwise. Customer is solely responsible for ensuring payment of applicable taxes or other charges.

5.2. Activation Fees. Customer agrees to pay the fees for all direct mail pieces or other additional services ordered.

5.3. Additional Fees. Customer agrees to pay any fees charged by a direct vendor of the Customer (e.g. DMS, CRM or website provider) to obtain Customer Records, support lead forwarding or associated with placement of Clarivoy’s Tracking Code. A $750.00 data onboarding fee will be billed for the initial processing of up to 100,000 unique Customer Records. Each additional unique Customer Record processed thereafter will be billed at $0.01 per record per Customer approval.

5.4. Payment. Customer agrees to provide a payment method to pay the charges for the Services. By providing Clarivoy with a payment method, Customer (i) represents that Customer is authorized to use the payment method that it provided and that any payment information is true and accurate; (ii) authorizes Clarivoy to charge Customer for the Services using Customer’s payment method; and (iii) authorizes Clarivoy to charge Customer for any Services ordered by Customer. As specified in the Order Form, Clarivoy may bill Customer (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Customer must pay any invoices within thirty (30) days. Customer agrees to keep its payment information up to date.

5.5. Payment on file. Customer may be given the option to use a convenience feature that retains payment information previously entered during a prior purchase from Clarivoy, which Clarivoy will use to process Customer’s order, and which Clarivoy will store in connection with Customer’s account.

5.6. Subscription. If Customer’s purchase is based on a monthly or other periodic subscription fee, Clarivoy will automatically charge the subscription fee plus any applicable taxes and fees each month or other pay period to your credit card or other payment method that Customer provides to Clarivoy. At the expiration of each subscription term, Clarivoy will automatically renew your subscription and charge the credit card or other payment method you have provided to us, unless you cancel your subscription. Your subscriptions will automatically renew at the then-current price plus any applicable taxes and fees, excluding promotional and discount pricing. Customer can cancel a subscription service by contacting Clarivoy.

5.7. Late Payments. Late payments will be subject to late fees at the rate of 1.0% per month, or if lower, the maximum rate allowed by law.

5.8. Dispute. Customer is deemed to have waived any objection to an invoice unless Customer notifies Clarivoy in writing of an objection to an invoice within ten (10) business days following Customer’s receipt of the invoice at issue. Customer remains obligated to pay all undisputed amounts when due.

5.9. Non-Payment. If Customer fails to pay undisputed fees invoiced by Clarivoy within ten (10) days following the payment due date, Clarivoy shall have the option, without prior notice or warning, to:

(a) Terminate this Agreement; or

(b) Deactivate Customer’s access to the Dashboard; or

In the case of (b) and (c), Clarivoy will not restore service until Customer pays all overdue amounts, and the costs, if any, incurred by Clarivoy in collecting the undisputed past due fees (e.g., attorney’s fees and collection costs).

6. Proprietary Rights.

6.1. Clarivoy Ownership Rights. Clarivoy retains all rights in and to the Service, including without limitation:

(a) Its applications;

(b) The Dashboard,

(d) Its technology, algorithms, code, organization and structure of its data and databases used to provide the Service; and

(e) The look and feel of its reports and Web sites.

6.2. Limitations. Customer has no rights in or to the Services or Dashboard beyond the limited rights of access and use contemplated by this Agreement.

6.3. Customer Ownership Rights. Customer retains all rights in and to the Customer Data and its own technologies, know how, content and media assets.

7. Confidentiality.

7.1. Duty. Each party will:

(a) Protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and

(b) Not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential.

7.2. Use of Confidential Information. Each Party (and any affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates' employees and agents in violation of this Section.

7.3. “Confidential Information” means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. The Service, including without limitation its applications, databases, organization, design and structure of its databases and reports, shall be Clarivoy’s Confidential Information.

7.4. Exclusions. Confidential Information does not include information that:

(a) The recipient of the Confidential Information already knew;

(b) Becomes public through no fault of the recipient;

(d) Was rightfully given to the recipient by another party.

7.5. Required Disclosure. Each Party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible:

(a) Uses commercially reasonable efforts to notify the other Party; and

(b) Gives the other Party the chance to challenge the disclosure.

7.6. Reports. Clarivoy will make its standard reporting available on the Dashboard as described in the Order Form.

8. License.

8.1. License by Clarivoy. Clarivoy grants Customer during the Term a non-exclusive, non-transferable, non-sublicensable and non-assignable (except as is provided in Subsection 15.5) worldwide license during the Term to access and use the Services solely for Customer’s internal business use and for the activation of advertising to the Shopper Types.

8.2. License by Customer. Customer grants Clarivoy a non-exclusive worldwide license to use Customer Data:

(a) To fulfill Clarivoy’s obligations under this Agreement;

(b) To compile aggregate statistics for its own business purposes, such as, improving its Service, assessing trends in online advertising and audience demographics, or to create new or derivative products or services; and

(c) To retain, aggregate, use and relicense any statistics and information collected by Clarivoy for its business research, white papers, presentations and for marketing purposes, provided that such data may be used in aggregate form only and shall not reveal the identity of any individual or Customer as a source of such data.

9. Privacy.

9.1. Privacy Policy. Customer agrees that it will post on all applicable websites (those with the Clarivoy Tracking Code) an easy-to-understand privacy policy with a link from the website’s home page that contains the word “Privacy”, which shall clearly disclose that:

(a) Customer works with a third party for any targeted advertising delivery;

(b) The information collected about a consumer’s visits to web sites may be used in order to provide advertisements about goods and services of interest to the consumer; and

9.2. Privacy Terms. Clarivoy has generic sample language available for such privacy policy content posted here. However, Customer retains sole responsibility for providing on its website(s) a privacy policy that complies with all laws and regulations applicable to Customer, and Clarivoy disclaims responsibility and liability for Customer’s failure to comply with the foregoing requirements.

9.3. Additional Requirements. Clarivoy may from time to time require Customer to provide specific additional notice mechanisms consistent with applicable laws or industry self-regulations for the purpose of providing end users with information and choices in connection with online advertising.

10. Term; Termination.

10.1. Term. This Agreement shall commence on the Effective Date and shall expire after three (3) months (“Initial Term”) and shall renew automatically for successive one-month terms (each, a “Renewal Term”) (together with the Initial Term, the “Term”) unless either party provides notice of cancellation thirty (30) days prior to the end of the Initial Term or Renewal Term that it wishes to terminate the Agreement. Such notice may be provided by email.

10.2. Termination. In addition to the other remedies provided in this Agreement, this Agreement shall terminate if:

(a) A party is in material breach and fails to cure within thirty (30) days following receipt of written notice from the non-breaching party; or

(b) Upon Clarivoy’s written notice to Customer of its reasonable determination that Customer is using the Services in a manner likely to damage the Services or Clarivoy’s reputation.

10.3. Duties upon Termination. On the date of expiration or termination of this Agreement (a) Customer’s access to the Dashboard and Services will end, (b) Customer shall promptly pay all amounts due and still owing to Clarivoy, including an early termination fee of $750.00 should the Customer choose to terminate prior to the end of a given Term (c) Customer shall turn off lead forwarding, and (d) Customer shall remove Clarivoy Tracking Code from all websites.

11. Representations and Warranties.

11.1. Mutual Warranties. Each party represents and warrants to the other that:

(a) It has the full power and authority to enter into this Agreement;

(b) The person signing the Order Form (whether in electronic or written form) has the authority to bind the Customer to this Agreement.

(c) Its execution, delivery and performance of this Agreement will not violate, conflict with, or result in a material default under any other contract or agreement to which such party is a party, or by which it is bound; and

(d) It shall comply with all applicable laws and regulations.

11.2. Disclaimers. EXCEPT AS PROVIDED ABOVE, EACH PARTY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, CLARIVOY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IDENTIFICATION AND ENRICHMENT RATES.

11.3. Additional Disclaimer. IN ADDITION, CLARIVOY MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES WILL BE AVAILABLE AT ALL TIMES AND LOCATIONS OR WITH RESPECT TO THE RESULTS THAT CUSTOMER MAY DERIVE FROM THE SERVICES.

12. Indemnification.

12.1. Claims. Each Party agrees to indemnify, defend and hold harmless each other from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with:

(a) The breach of any representation, warranty or obligation under this Agreement,

(b) The other Party’s failure to comply with any applicable law or regulation; or

12.2. Indemnified Party’s Obligations. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that:

(a) Any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed; and

(b) The other Party may join in the defense with its own counsel at its own expense.

12.3. Replace, Repair or Modify. If Clarivoy reasonably believes the Services infringe a third party’s intellectual property rights, then Clarivoy will:

(a) Obtain the right for Customer to continue using the Services;

(b) Provide a non-infringing functionally equivalent replacement; or

(d) Terminate the Services at no penalty to Customer.

This Subsection shall be Customer’s exclusive remedy against Clarivoy for an infringement claim.

12.4. Exception. Clarivoy has no obligation to provide any remedies under this Section if an infringement claim is based on the Customer’s or its end users’:

(a) Use of any Services after Clarivoy notifies Customer to discontinue its use;

(b) Combining the Services with a non-Clarivoy product, data or business process;

(d) Customer’s redistribution of the Services to a third party who is not authorized to use the Services under this Agreement.

13. Limitation of Liability.

13.1. Mutual Limitation. EXCEPT FOR A PARTY’S DUTY TO INDEMNITY THE OTHER, IN NO EVENT WILL EITHER PARTY, ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS AND REPRESENTATIVES HAVE LIABILITY THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.

13.2. Additional Limitations.

(a) UNDER NO CIRCUMSTANCES SHALL Clarivoy BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSSES, COSTS OR DAMAGES (WHETHER DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY) INCURRED IN CONNECTION WITH THE AVAILABILITY, OPERATION OR USE OF ANY THIRD PARTY SERVICES OR THE ACTS OR OMISSIONS OF any THIRD PARTY PROVIDERS.

(b) Except for EACH PARTY’S obligation TO INDEMNIFY THE OTHER, one party’s liability to the other for all claims arising hereunder shall not exceed the total amount of Fees paid and payable by customer to Clarivoy during the Twelve (12) month period prior to the date the liability first arose.

14. Restrictions.

14.1. Customer Restrictions. Customer may not:

(a) Use the Services for commercial time-sharing, rental or service bureau use, or outsourcing for third parties;

(b) Directly or indirect through others access the Services to “scrape” or data mine Clarivoy’s applications, source code, computer servers or databases for the purpose of creating for Customer or any third party a searchable database or competitive product derived from Clarivoy’s system;

(d) Modify, prepare derivative works of, translate, reverse engineer, reverse compile, or disassemble the Service.

14.2. Mutual Obligation. Neither Party shall:

(a) Transmit viruses, including, without limitation, codes, commands, or instructions designed to access, alter, delete, damage or disable the other Party’s computer information system and networks;

(b) Engage in unlawful or deceptive conduct;

(d) Access the other Party’s computer network, systems and databases without permission, including without limitation, using password spoofing.

15. General.

15.1. Publicity. Each Party shall have the right to use the other Party’s name and logo in general marketing materials related to the Service.

15.2. Dispute Resolution. The Parties agree to resolve any disputes between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process.

15.3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio.

15.4. Venue. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN FRANKLIN COUNTY, OHIO, UNITED STATES OF AMERICA.

15.5. Assignment.

(a) Either Party upon notice to the other may assign its obligations under this Agreement in the event of a merger or acquisition of the Party or an acquisition of substantially all of such Party’s assets.

(b) Except as provided above, each Party may not assign any of its rights or delegate any of its obligations under this Agreement without the other Party’s written consent, which consent will not be unreasonably withheld.

(c) This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

15.6. Amendment. The Parties may modify this Agreement only in a writing signed and/or authenticated by each Party.

15.7. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

15.8. Notices. All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement and sent to the addresses provided above. Such writing may be provided in email form.

15.9. Independent Entities. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.

15.10. Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.

15.11. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.

15.12. Complete Understanding. This Agreement is the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.

15.13. Survival. The following sections will survive expiration or termination of this Agreement: Sections 6 to 10, and 12 to 15.

15.14. Counterparts. If the Order Form is not completed through the ShoppersON website, the Parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

15.15. Electronic Transactions. If the Order Form is not completed through the ShoppersON website, the Parties may present and sign this Agreement electronically, which shall have the same force and effect as an Agreement signed in writing.

15.16. Additional Remedies. Each Party acknowledges that a Party may suffer irreparable harm should a Party fail to abide by the terms this Agreement, such as, each Party’s confidentiality obligations or proprietary rights. Therefore, each Party agrees that a Party may, in addition to recovering legal damages, proceed in equity to obtain injunctive relief to enjoin violation of this Agreement.

16. COMPLETENESS. The Agreement is the complete and exclusive agreement between the Customer and Clarivoy regarding its subject matter and supersedes and replaces any prior agreement, understanding and communication, written or oral.