Updated 1/2025
The terms and conditions below (“Master Subscription Terms”) govern any Motor Vehicle Software Corporation d/b/a Vitu (hereinafter “Vitu”) Order Form that references them.
In addition to these Master Subscription Terms, each Vitu Product ordered pursuant to an Order Form also incorporate by reference certain attachments (“Attachments”) that also govern it.
The following capitalized terms, when used in these Master Subscription Terms, any Additional Product Terms or any other Attachments, will have the corresponding meanings provided below:
1.1 “Activation Date” means the date referenced in the applicable Order Form as being the date on which the Subscription Term will commence. If no date is specified on such Order Form, then the Activation Date will be the date on which Customer is activated by Vitu to begin using the applicable Vitu Product.
1.2 “Additional Product Terms” has the meaning set forth in the preamble above.
1.3 “Affiliate” means any entity that directly or indirectly (through one or more intermediaries) Controls, is Controlled by, or is under common Control with Vitu or Customer.
1.4 “Analytics Data” means data, other than Customer Data or OEM Data, that is generated in connection with Customer’s use of any Vitu Product, including log, performance, usage, referral, search term, pixel, session, cookie, flash local storage object, beacon, and other web analytics data.
1.5 “Attachments” has the meaning set forth in the preamble above.
1.6 “Authorized Customer Location” means Customer’s physical location specified in the applicable Order Form.
1.7 “Authorized Users” means Customer Personnel who have been issued Credentials to access a Vitu Product in accordance with these Master Subscription Terms, and any applicable Additional Product Terms or Attachments.
1.8 “Confidential Information” means all information or materials provided or otherwise disclosed by or on behalf of Disclosing Party to the Receiving Party, whether orally or in writing, that are designated as confidential or that reasonably should be understood to be confidential, given the nature of the information disclosed and the circumstances of disclosure. In each case, as applicable, (a) Vitu’s Confidential Information includes the Vitu Products and all information and materials that in any way relate to any Vitu Product (including any pricing information relating to the Vitu Products) or any other aspect of the business or operations of Vitu or its Affiliates, including any information or materials relating to the operations, customers, contractors, distributors, software, technology, products, services or marketing plans of Vitu or its Affiliates; and (b) Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, Confidential Information does not include information that: (1) is or becomes generally available to the public other than as a result of a wrongful disclosure by the Receiving Party; (2) was rightfully in the possession of, or was rightfully known by the Receiving Party without an obligation to maintain its confidentiality prior to receipt from the Disclosing Party; (3) becomes available to the Receiving Party on a non-confidential basis from a source which is not, to the Receiving Party’s knowledge, prohibited from disclosing such information; (4) is developed independently by the Receiving Party; or (5) was generally made available to Third Parties by the Disclosing Party without restrictions similar to those imposed under these Master Subscription Terms.
1.9 “Consumer Information” means any information that is defined as “personal information,” or any other substantially similar designation, under any applicable Privacy Laws.
1.10 “Control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interests of the subject entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise.
1.11 “Vitu” means Motor Vehicle Software Corporation d/b/a Vitu and/or an Affiliate of Vitu that is a party to the applicable Order Form. Such entity may be referenced in the Order Form and/or Additional Product Terms by its name, instead of as “Vitu”.
1.12 “Vitu Mark” means any name, logo, trademark or service mark of Vitu or its Affiliates.
1.13 “Vitu Product” means a Vitu software product or service identified on the applicable Order Form. The Order Form may cover more than one Vitu Product. Solely with respect to any use restrictions regarding the applicable Vitu Product as set forth in these Master Subscription Terms, any Additional Product Terms or any Attachments, the term “Vitu Product” will include any Third Party Interfaces applicable to or integrated with such Vitu Product.
1.14 “Credentials” means any log-in credentials (e.g., usernames and passwords) and any other security information required to access or use a Vitu Product.
1.15 “Customer” means the Vitu customer that is a party to the applicable Order Form.
1.16 “Customer Data” means, in each case as applicable to a Vitu Product, (a) any data, content or information stored in a Customer Instance of a Vitu Product, and (b) any Customer data that a Vitu Product may receive directly from Customer, Customer’s systems, or any applicable Third Party Licensor’s systems, including Customer DMS Data, which in each case may include Consumer Information. Customer Data expressly excludes Analytics Data and OEM Data.
1.17 “Customer DMS Data” means Customer Data that is accessed by a Vitu Product via an integration with Customer’s DMS.
1.18 “Customer Instance” means the discrete data store that Vitu allocates to Customer for the applicable Vitu Product. For avoidance of doubt, one Customer Instance is required for each Authorized Customer Location.
1.19 “Customer Mark” means any name, logo, trademark or service mark of Customer.
1.20 “Customer Representative” means any employee, agent, contractor or other representative of Customer, including Authorized Users. For purposes of the applicable Order Form (including these Master Subscription Terms, Additional Product Terms and any other Attachments), acts and omissions of Customer Representatives will be deemed to be acts and omissions of Customer.
1.21 “Customer Resources” means Customer-utilized systems, content or materials (including those licensed from Third Parties, or purchased or developed by Customer) that may be, as applicable, integrated with a Vitu Product or transmitted, uploaded or otherwise submitted to a Vitu Product.
1.22 [Reserved]
1.23 “Disclosing Party” means the Party that provides Confidential Information to the Receiving Party (or on behalf of which Confidential Information is provided) in connection with an Order Form.
1.24 “DMS” means a dealer management system, which is an enterprise management information system used by a Customer.
1.25 “Email Notice” means: (a) in the case of notice from Customer to Vitu, an email to [email protected]; or (b) in the case of notice from Vitu to Customer, an email to the email address that Vitu has on file with respect to the Vitu Product.
1.26 “Feedback” means any information, suggestions, ideas, enhancement requests, recommendations, comments and other feedback that Customer or any Customer Representative may disclose, transmit, suggest or offer to Vitu or its Affiliates with respect to any Vitu Product.
1.27 “Fees” means, collectively, all fees due and payable from Customer to Vitu or Vitu Affiliates pursuant to the applicable Order Form, including Subscription Fees and any other fees.
1.28 “including” means “including, without limitation”.
1.29 “Inventory” means motor vehicle license plates or other registration material provided by a government agency or government contractor.”
1.30 “Laws” means all applicable federal, state and local laws, regulations, rules, ordinances and other decrees of any governmental authority.
1.31 “Legal Notice” means written notification to the following addressees: (a) if from Customer to Vitu, then to Vitu , Attention: Legal Department, 29901 Agoura Road, Agoura Hills CA 91301, with a copy sent via email to the Vitu email address used for Email Notice and, if applicable, to the Vitu address specified in the applicable Order Form; or (b) if from Vitu to Customer, then to the address that Vitu has on file for Legal Notices to Customer, or if no such address is on file, to the address of an Authorized Location, with Attention: Legal Department.
1.32 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.33 “Master Subscription Terms” has the meaning set forth in the preamble above.
1.34 “Mobile Application” means a mobile or tablet website or application.
1.35 “Modifications” means changes, upgrades, updates, modifications or enhancements to, or derivative works of, a Vitu Product.
1.36 “OEM” means an original equipment manufacturer of motor vehicles.
1.37 “OEM Data” means all data provided by an OEM to Customer or Vitu, directly or indirectly, in connection with the applicable Order Form, including OEM-provided data that may be stored in Customer’s DMS and/or the applicable Customer Instance.
1.38 “Order Form” means the ordering document between Vitu and Customer, under which Customer subscribes to one or more Vitu Products. An Order Form may be a written or an electronic agreement, and may also include online forms or terms that have been “accepted” or “agreed” by Customer.
1.39 “Party” means Customer or Vitu, individually, as applicable; and “Parties” means Customer and Vitu, collectively.
1.40 “Personnel” means agents, employees, officers, directors or contractors employed, engaged or appointed by a Party hereunder.
1.41 “Privacy Laws” means all applicable privacy laws and information security laws, and any other applicable federal, state, provincial or local laws, as they exist and are amended from time to time, relating to: (a) data privacy, security, integrity, confidentiality, communications, use, collection, processing and storage; and (b) spamming and other unsolicited communications, including, as applicable, the Gramm-Leach-Bliley Act (15 U.S.C. §§ 6801-6809, §§ 6821-6827) and related regulations (e.g., 16 C.F.R. Part 313 (Privacy Rule) and 16 C.F.R. Part 314 (Safeguards Rule)), the Telephone Consumer Protection Act (47 U.S.C. § 227), the Drivers Privacy Protection Act (18 USC § 2721, et seq.)
1.42 “Receiving Party” means the Party that receives Confidential Information from the Disclosing Party in connection with an Order Form.
1.43 “Subscription” means the right to access and use a Vitu Product during the applicable Subscription Term, subject to payment of Fees as set forth in the applicable Order Form.
1.44 “Subscription Fees” means the periodic (typically monthly) fees for the Subscription.
1.45 “Subscription Term” means the period of time specified on the applicable Order Form when the applicable Subscription is in effect.
1.46 “Third Party” means an entity or person that is neither a Party, nor an Affiliate of a Party.
1.47 “Third Party Interface” means any interface utilized for any integration between a Vitu Product and a Third Party Licensor’s product.
1.48 “Third Party Licensor” means any Third Party that makes available Third Party Materials.
1.49 “Third Party Materials” means data, content, software or other materials from a Third Party Licensor that are made available by, through or in connection with the applicable Vitu Product. Vitu may license but does not own Third Party Materials.
1.50 “Third Party Terms and Conditions” means any applicable terms and conditions or other agreements governing the access and use of the applicable Third Party Materials.
1.51 “Vitu Products” means any product or service offered by Vitu and described in an Order Form.
2.1 Subscription Term.
2.2 Access to Vitu Products. During the Subscription Term, Vitu will make the applicable Vitu Product available through a website or URL for Customer’s and its Authorized Users’ access and use. Except as otherwise expressly provided in the applicable Order Form, any Additional Product Terms and/or any applicable Attachments, Customer will be solely responsible for any software, hardware, connection, and other equipment, along with technical specifications which Vitu may update from time to time, in each case as necessary for Customer and its Authorized Users to access and use any Vitu Product.
2.3 Authorized Users. As necessary to access a Vitu Product, and subject to any limitations on the number of administrative Authorized Users and other Authorized Users in the applicable Order Form, Vitu will issue administrative Credentials to Customer, whereupon such administrative Authorized Users will be enabled to issue Credentials to additional Authorized Users. Customer will keep Credentials confidential and secure, and prevent such Credentials from being disclosed to or used by any person or party other than the Authorized Users to whom the Credentials are issued. Customer must immediately report in writing to Vitu (Email Notice will be sufficient) any unauthorized use or disclosure of any Credentials or any other account information of Customer. Customer will be responsible and liable for all actions taken through or under any Credentials issued to Customer in connection with the use of any Vitu Product, whether such actions are taken by an Authorized User or otherwise.
2.4 Authorized Customer Locations and Multiple DMS Instances. Unless otherwise specifically set forth on the applicable Order Form, Subscriptions to Vitu Products are provided on a “per-location” basis, meaning that each such Subscription is specific to, and may only be used for and by, one Authorized Customer Location. If the Authorized Customer Location has more than one DMS instance, and a Vitu Product requires integration with the DMS instances, then Customer will need a separate Subscription for each DMS instance.
2.5 Modifications. Vitu reserves the right, from time to time, to make Modifications to any Vitu Product; provided, however, that Vitu will not materially diminish the functionality of a Vitu Product during the Subscription Term. Unless there is a separate agreement between Vitu and Customer to the contrary, each such Modification may be made generally available to all Vitu customers that subscribe to the applicable Vitu Product.
2.6 Third Party Materials Made Available by Vitu. A Vitu Product may integrate with, incorporate or otherwise offer access to certain Third Party Materials. Third Party Materials are offered and made available by the applicable Third Party Licensor, and not by Vitu, and, as such, may be used, edited, reproduced and distributed by such Third Party Licensors outside the scope of these Master Subscription Terms and without Vitu’s knowledge. Any use of any Third Party Materials by Customer or any Authorized User is subject not only to the terms and conditions applicable to the Vitu Product, but also any applicable Third Party Terms and Conditions. Customer will notify Vitu promptly if Customer’s relationship with any Third Party Licensor to which Vitu provides integration on behalf of Customer terminates. Vitu is not responsible or liable to Customer or any other party for any Third Party Materials or any use thereof by Customer or any Authorized User. Neither Party may modify or terminate any of its respective obligations under these Master Subscription Terms, any Additional Product Terms or any Attachments in a manner that would impact the rights of any such Third Party Licensor adversely.
If a Vitu Product integrates with any Third Party Materials, Customer expressly authorizes and grants permission to Vitu and its Affiliates to: (a) substitute one form of integration for another, even in cases where Customer subscribed for a particular Vitu Product with a “certified” integration, or (b) immediately discontinue providing any integration or any part thereof if Vitu, in its sole discretion, determines that it no longer has the right or ability to provide such integration for any reason. In either case, Customer’s Subscription to the applicable Vitu Product will continue in full force and effect and Vitu may adjust Customer’s Fees as reasonably appropriate.
2.7 Integration with Customer Resources. To the extent integration with Customer Resources is applicable to a Vitu Product, (a) Customer grants Vitu, its Affiliates and its service providers permission to access such Customer Resources for the purpose of providing such integration; and (b) Customer consents to the installation of hardware connectors, software connectors and/or other custom programs on Customer’s local area network and/or computer workstations, and the enablement and use of passwords to access the Customer Resources by Vitu, its Affiliates and its designees.
2.8 Mobile Applications.
3.1 Subscription Cancellation.
3.2 Termination for Cause or Insolvency. Either Party may immediately terminate the applicable Order Form (and the corresponding Subscriptions): (a) if the other Party commits a material breach of such Order Form (including these Master Subscription Terms, any Additional Product Terms or any Attachments), and such breach has not been cured within fifteen (15) days after receiving Legal Notice of such; or (b) upon the initiation of any bankruptcy, insolvency or other similar proceeding against the other Party or an entity that Controls the other Party. In addition, Vitu may immediately terminate such Order Form (and the corresponding Subscriptions) if Customer defaults on its contractual obligations to Vitu or any Vitu Affiliate under another agreement, such that Vitu or the Vitu Affiliate has the right to terminate such agreement. Upon any termination of the applicable Order Form, all Subscriptions thereunder will be automatically canceled.
3.3 Effect of Cancellation. Upon any cancellation of a Subscription (including through a termination of the applicable Order Form):
3.4 Temporary Suspension. Vitu may at any time suspend Customer’s access to and use of a Vitu Product if Vitu reasonably believes that such access or use presents a threat or harm to the Vitu Product, Vitu or its other customers. Vitu will lift such suspension promptly after being reasonably assured that the threat or harm is no longer present.
Customer and Authorized Users will use and access Vitu Products solely for the purpose of managing and operating Customer’s business at the Authorized Customer Locations in the ordinary course. Customer (and Customer Representatives) may not:
5.1 Fees.
5.2 Late Fees and Payment Disputes. Vitu may charge interest on any payment not made when due at a rate equal to the lesser of one and one half percent (1.5%) per month, or the maximum rate allowed under applicable Law. Customer will also be liable for all collection agency fees and reasonable attorneys’ fees payable by Vitu or its Affiliates in connection with enforcing Customer’s payment obligations. In the event of any dispute with respect to an invoice, Customer must notify Vitu in writing of, and provide a good faith basis for, such dispute within sixty (60) days of the date such amounts are due.
5.3 Taxes. Except for franchise taxes, commerce taxes, and taxes based upon the net income and personal property of Vitu, Customer will be solely responsible for any taxes or other assessments imposed by governmental authorities in connection with Customer’s use of or access to any Vitu Product.
5.4 Fee Adjustments and Increases.
6.1 Vitu Products and Third Party Materials. Except for the rights expressly granted to Customer under Section 2 above or in any Additional Product Terms or Attachment, Customer will not have any right, title or interest in or to any Vitu Product, Third Party Materials or any other technology, materials or intellectual property of Vitu, its Affiliates or Third Party Licensors, and nothing herein will effect a transfer of any intellectual property rights or any other ownership rights away from Vitu, its Affiliates or Third Party Licensors. Vitu and its Affiliates, Third Party Licensors and partners, as the case may be, reserve and retain all of their intellectual property rights and ownership rights, including to Third Party Materials.
6.2 Customer Data.
6.3 Analytics Data. Customer acknowledges and agrees that, as between the Parties, Vitu (along with its Affiliates) owns and has the right to freely use and disclose Analytics Data for its business purposes, provided that Analytics Data may not be disclosed in a manner that identifies, or could be used to identify, Customer, or otherwise associates Customer with such data.
6.4 Customer Feedback. Customer also acknowledges and agrees that any Feedback from Customer (including any Customer Representatives) is submitted without any restrictions or expectations of confidentiality. As such, Customer (on behalf of itself and its Customer Representatives) hereby permits Vitu to use, to allow others to use, or to assign the right to use, without compensation, restriction or further obligation of any kind, any Feedback for any purpose whatsoever, including publication or the creation of any intellectual property or derivative works of or relating to any Feedback.
6.5 Marks. Customer acknowledges that no rights or licenses are being granted to Customer or any Authorized User with respect to any Vitu Marks, and Customer will obtain the written consent of Vitu prior to any use or display of any Vitu Mark by Customer or any Authorized User. Vitu (and its Affiliates) will retain all intellectual property rights and all ownership rights in and to the Vitu Marks.
Vitu acknowledges that no rights or licenses are being granted to Vitu or any Affiliates of Vitu with respect to any Customer Marks, except that Vitu may use Customer Marks in connection with the provision of Vitu Products and related services to Customer. Vitu otherwise will obtain the written consent of Customer prior to any use or display of any Customer Mark by Vitu or any Vitu Affiliate. Customer will retain all intellectual property rights and all ownership rights in and to the Customer Marks.
7.1 Confidentiality Obligations. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the services set forth in the applicable Order Form, and (except as otherwise authorized by the Disclosing Party in writing) disclose Confidential Information of the Disclosing Party only to its Personnel who need to know such information for purposes of fulfilling such Party’s obligations or exercising such Party’s rights relating to the services set forth in the applicable Order Form. The Receiving Party will keep the Confidential Information of the Disclosing Party confidential and secure, and protect it from unauthorized use or disclosure, by using at least the same degree of care as the Receiving Party employs to protect its own Confidential Information, but in no event less than reasonable care.
7.2 Compelled Disclosure. If the Receiving Party becomes legally compelled to disclose any Confidential Information of the Disclosing Party in a manner not otherwise permitted by these Master Subscription Terms, the Receiving Party will inform the Disclosing Party of the request with a prompt Legal Notice so that the Disclosing Party may seek a protective order or other appropriate remedy. If a protective order or similar order is not obtained by the date by which the Receiving Party must comply with the request, the Receiving Party may furnish that portion of the Confidential Information that it reasonably determines it is legally required to furnish. The Receiving Party will exercise reasonable efforts to obtain assurances that confidential treatment will be afforded to the Confidential Information so disclosed. This Section 7.2 will survive any termination of these Master Subscription Terms.
7.3 Injunctive Relief. Each Receiving Party acknowledges and agrees that the wrongful disclosure of any Confidential Information of the Disclosing Party may cause irreparable injury to such Party and its applicable Affiliates, and that remedies other than injunctive relief may be insufficient. Accordingly, the Disclosing Party will have the right to seek equitable and other injunctive relief to prevent any wrongful disclosure of any of its Confidential Information, as well as such damages and other relief to which such Party or its Affiliates may be entitled.
7.4 No Implied Rights. Each Party’s Confidential Information will remain the property of that Party. Nothing contained in this Section 7 will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party any implied rights or license to the Confidential Information of the other Party.
7.5 Customer Information. Customer’s use of Vitu Products is considered private. However, Vitu may access or disclose information about Customer, Customer’s account, the content of Customer communications, and/or Consumer Information, in order to: (1) Process transactions pursuant to Customer’s request (2) comply with a valid request of a government agency, (3) comply with legal process served on us; (4) enforce and investigate potential violations of this Agreement; (5) protect the rights, property, or safety of Vitu, its Affiliates, its officers, its directors, its employees, its customers, or the public; and/or (6) as otherwise permitted by law. Customer consents to the access and disclosures outlined in this section.
In order to provide Vitu Products, Vitu may collect certain information about Customer’s use of Vitu Products, including information related to the computers used to access Vitu Products. If Customer utilizes the electronic vehicle registration or record inquiry functions within Vitu, Vitu may require Customer run an activation utility to comply with certain security protocols required to protect the information provided by government agencies. Vitu may automatically upload this information from your machine. Customer may read the entire privacy policy at vitu.com/privacy-policy.
7.6 Consumer Information. We agree to only use Consumer Information for purposes necessary to provide the Vitu Products. Except as provided in this Agreement, we will not use Consumer Information for marketing or other purposes unrelated to the Vitu Products without your express permission.
Vitu agrees to maintain physical, electronic and procedural safeguards that comply with federal and state laws, so as to maintain the confidentiality of all Consumer Information and data regarding Customer’s customers that may come into the possession of Vitu.
Unless Customer opts-out by emailing Vitu at [email protected], as part of the service Vitu provides, Customer agrees to allow Vitu to contact Customer’s customers via email or otherwise to inform them of the status of their title, plates, registration indicia, and/or registration renewal requirements.
7.7 NOTICE TO NORTH CAROLINA CUSTOMERS. FOR ALL PRODUCTS THAT REASONABLY PERTAIN TO CONSUMER INFORMATION: THE ORDER FORM, THESE MASTER SUBSCRIPTION TERMS, ANY ADDITIONAL PRODUCT TERMS AND APPLICABLE ATTACHMENTS RELATE TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER-RELATED DATA.
7.8 Inventory Discrepancies. In connection with Customer’s use of certain Vitu Products, Vitu or the applicable Department may provide Inventory to Customer. Customer hereby acknowledges that it is responsible for the safety and storage of any and all such Inventory. Customer agrees to immediately report to Vitu any Inventory Discrepancies. In some states ,there may be significant fines and/or penalties associated with Inventory Discrepancies. Customer is solely responsible for payment of all fines and penalties, whether billed by the Department directly to Customer or to Vitu. Customer further agrees to cooperate with Vitu and the Department in their investigations of any Inventory Discrepancies, including but not limited to, filing a police report as may be required by the Department. Customer agrees to maintain a copy of any such police report, to provide Email Notice of such filing to Vitu, and to submit a copy to Vitu at 29901 Agoura Road, Agoura Hills CA 91301 Attn: Legal, or any other address as Customer may be directed by Vitu.
8.1 By Vitu. Vitu represents and warrants to Customer that:
8.2 By Customer. Customer represents and warrants to Vitu that:
9.1 By Vitu. Vitu will indemnify and defend Customer against any damages, losses, costs and expenses (including reasonable attorneys’ fees, court costs, settlement costs and awarded amounts) incurred in connection with any Third Party claim to the extent such claim arises from (a) an allegation that the use of a Vitu Product in accordance with the applicable Order Form (including these Master Subscription Terms and any Additional Product Terms or Attachments) infringes or misappropriates such Third Party’s intellectual property rights, (b) any breach by Vitu of any representations or warranties, or (c) any claim with respect to the willful misconduct or gross negligence of Vitu.
9.2 By Customer. Customer will indemnify and defend Vitu and its Affiliates against any damages, losses, costs and expenses (including reasonable attorneys’ fees, court costs, settlement costs and awarded amounts) incurred in connection with any Third Party claim to the extent that such claim arises from (a) any use of or access to any Vitu Product or Third Party Material by or on behalf of Customer (subject to Vitu’s indemnification obligations in Section 9.1 above), (b) any use of or access to any Customer Data or Consumer Information by Vitu and its Affiliates in accordance with the applicable Order Form (including these Master Subscription Terms and any Attachments), (c) any breach by Customer or any Customer Representative of any representations or warranties, (d) Vitu’s provision of an integration or otherwise transmitting any data to a Third Party as authorized by Customer, including with respect to data security and use of data, (e) any claim by a retail consumer of Customer or any other purchaser of any vehicle or any other Customer product or service, or (f) any claim with respect to the willful misconduct or gross negligence of Customer.
10.1 LIABILITY LIMITATIONS. NEITHER PARTY (INCLUDING, IN THE CASE OF VITU, ITS AFFILIATES, AND ITS THIRD PARTIES, INCLUDING ALL THIRD PARTY LICENSORS) WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, MULTIPLE, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THE APPLICABLE ORDER FORM OR THE USE OF ANY VITU PRODUCT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, THE AGGREGATE LIABILITY UNDER EACH ORDER FORM OF VITU, ITS AFFILIATES AND ITS THIRD PARTIES (INCLUDING ALL THIRD PARTY LICENSORS), ON THE ONE HAND, AND CUSTOMER AND CUSTOMER REPRESENTATIVES, ON THE OTHER HAND, WILL BE EXPRESSLY LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO VITU FOR THE AFFECTED VITU PRODUCT UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, (B) DAMAGES AND LOSSES RESULTING FROM CUSTOMER’S BREACH OF THE RESTRICTIONS IN SECTION 4, OR (C) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INCLUDING WITH RESPECT TO A PARTY’S BREACH OF SECTION 7 (CONFIDENTIAL INFORMATION) OR APPLICABLE PRIVACY LAWS.
10.1 DISCLAIMERS. CUSTOMER IS SOLELY RESPONSIBLE FOR THE ACCURACY AND CONTENT OF ANY CUSTOMER DATA. THE VITU PRODUCTS ARE INTENDED ONLY TO FACILITATE THE MANAGEMENT AND OPERATION OF CERTAIN ASPECTS OF CUSTOMER’S BUSINESS AT THE AUTHORIZED CUSTOMER LOCATION(S). EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, NEITHER VITU NOR ANY OF ITS AFFILIATES (NOR ANY THIRD PARTY LICENSORS) MAKE ANY REPRESENTATION OR WARRANTY TO CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY VITU PRODUCT (OR ANY THIRD PARTY MATERIALS OR THIRD PARTY INTERFACES), EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY TYPE OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VITU MAKES NO REPRESENTATION, WARRANTY OR COMMITMENT: (A) THAT THE VITU PRODUCTS WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION OR IN ACCORDANCE WITH ANY SPECIFICATIONS; (B) THAT THE VITU PRODUCTS ARE SUITABLE FOR ANY SPECIFIC PURPOSE, INCLUDING ANY ADVICE REGARDING THE VALUE, COSTS, PROFIT TARGETS, QUALITY OR SUITABILITY OF ANY PARTICULAR TRANSACTION, SALES STRATEGY OR OTHER BUSINESS PRACTICE; OR (C) AS TO THE ACCURACY OF ANY CONTENT OR DATA MADE AVAILABLE TO CUSTOMER THROUGH OR IN CONNECTION WITH THE VITU PRODUCTS. IN NO WAY DOES ANY VITU PRODUCT OR OTHER MATERIALS OR INFORMATION PROVIDED BY VITU OR ITS AFFILIATES (INCLUDING, AS APPLICABLE AND WITHOUT LIMITATION, ANY FORM CONTRACTS, MENUS, DISCLAIMERS, PRIVACY POLICIES, OR TERMS AND CONDITIONS) CONSTITUTE LEGAL ADVICE. VITU IS NOT ENGAGED IN THE PRACTICE OF LAW OR IN PROVIDING LEGAL OR COMPLIANCE SERVICES. ACCORDINGLY, CUSTOMER SHOULD CONSULT WITH ITS OWN LEGAL ADVISOR FOR LEGAL ADVICE RELATING TO ANY VITU PRODUCT.
11.1 Arbitration. Customer agrees to arbitrate any dispute or claim that it may have with Vitu or its Affiliates that arises out of or relates in any way to the applicable Order Form or Customer’s use of or access to any Vitu Product. Such arbitration will be final and binding. If Vitu elects in its discretion to submit to arbitration any dispute or claim that it may have against Customer, any such arbitration will be governed by the provisions of this Section 11.
11.2 Class Waiver. Any arbitration proceeding under this Section 11 will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted and Customer expressly waives its ability to participate in a class or representative proceeding against Vitu or its Affiliates. If the arbitration clause is found inapplicable to Customer’s dispute with Vitu, this class waiver will continue to apply in litigation. Customer agrees that this class waiver is an essential element of the agreement between Customer and Vitu and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this Section 11 will be null and void.
11.3 Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to this Section 11 must be submitted to binding arbitration before a single arbitrator administered by JAMS pursuant to JAMS Streamlined Rules. The arbitrator will be bound by and will strictly enforce these Master Subscription Terms and any other applicable Additional Product Terms, Attachments and/or Order Forms between Customer and Vitu, including any limitations of liability contained therein, and may not limit, expand or otherwise modify any of the provisions of the foregoing. Any arbitration will be held in Los Angeles, California, unless otherwise agreed upon by the Parties in writing. Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator will award the applicable Party any costs and fees to which it may be entitled under Section 9 in connection with any indemnification claim. Customer agrees that its transactions with Vitu evidence transactions in interstate commerce, and that the Federal Arbitration Act therefore governs the interpretation and enforcement of this Section 11 (notwithstanding the application of California Law to any underlying claims). Customer also agrees that this Section 11 survives any termination of these Mater Subscription Terms.
12.1 Notices. All Legal Notices required or permitted to be given by a Party must be (a) in writing; (b) sent by commercial delivery service or certified mail, return receipt requested; and (c) deemed to have been given on the date set forth in the records of the delivery service or on the return receipt. Email Notices will be deemed to have been given upon receipt of the email (regardless of whether the email is opened), which may be evidenced by “delivery receipt” received by the sender.
12.2 Order Form Effectiveness.
12.3 Governing Law and Forum. General disputes arising from or related to an Order Form and unrelated to state-specific motor vehicle registration or titling requirements shall be governed and construed in accordance with the Laws of the State of California, without regard to its conflict of Laws principles. Disputes arising from or related to an Order Form and related to state-specific motor vehicle registration or titling requirements shall be governed and construed in accordance with the Laws of the state within which the dispute arises. Any action to enforce any arbitration proceeding, and any other legal action, suit or proceeding that is not otherwise subject to mandatory arbitration pursuant to Section 11 and arises under or relates to such Order Form, and any Attachments, or the use of any Vitu Products, will be filed exclusively in a state or federal court located in Los Angeles County, California, and Customer consents to such forum and irrevocably and unconditionally waives any objection to the laying of venue in such forum.
12.4 Order of Precedence. In the event of any conflict in contract terms, and unless otherwise specified expressly on the Order Form, the order of precedence will be, from highest to lowest priority: (a) the terms appearing in the applicable Order Form, (b) the terms of any Additional Product Terms, (c) the terms of any Attachment, and (d) these Master Subscription Terms. Contract terms will not be interpreted strictly against a Party by virtue of such Party’s role in preparing or drafting them.
12.5 Amendments and Modifications. Any amendments or modifications of these Master Subscription Terms, any Attachments, or the applicable Order Forms will only be effective if in writing and signed by each Party.
12.6 Force Majeure. Neither Party will be liable for any failure or delay in performing any obligation (except the requirement to pay Fees) to the extent such failure or delay is attributable to causes beyond its reasonable control. Such causes include natural catastrophes, strikes or labor difficulties, denial of service attacks, internet or Third Party hardware or service failures, telecommunication failures, any act of God or other condition or event outside a Party’s reasonable control, to the extent not occasioned by the fault or negligence of the delayed Party.
12.7 Cooperation and Access to Authorized Customer Locations. If Customer subscribes to a Vitu Product that requires Customer action or cooperation prior to implementation or that requires Vitu to enter an Authorized Customer Location to complete set-up services, Customer agrees it will complete all necessary actions and, as applicable, will allow Vitu personnel or contractors to access its premises, as needed, to set-up the Vitu Product. Vitu may treat Customer’s failure to complete such required actions within a reasonable time determined by Vitu, or Customer’s failure to allow Vitu such access within twenty (20) days of Vitu’s request for entry, as a material breach.
12.8 Third Party Licensor Rights. A Third Party Licensor may enforce this Agreement as a third party beneficiary solely with respect to use of any of its Third Party Materials; and neither Customer nor Vitu may modify or terminate any of Customer’s obligations in a way that would adversely impact the rights of any such Third Party Licensor adversely. Otherwise, the applicable Order Form is not intended to confer upon any person or entity the right to enforce any rights or remedies hereunder.
12.9 Entire Agreement. The Order Form – including these Master Subscription Terms and any Attachments – constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to such matters, whether oral or written. Notwithstanding anything herein to the contrary, to the extent there is any conflict between this agreement and other agreements Customer currently has, has had in the past, or may have in the future with Vitu or its Affiliates regarding products or services outside the scope of the Order Form, those other agreements will continue to control with respect to such products and services.
12.10 Non-Waiver and Severability. The failure of either Party to enforce any provision of these Master Subscription Terms will not be deemed a waiver of such provision or of the right of such Party thereafter to enforce such provision. If any provision is deemed invalid or prohibited by Law, such provision will, if possible, be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable Law. In any event, the remainder of the provisions will remain in full force and effect.
12.11 Headings. The headings used in these Master Subscription Terms are used for convenience only and are not to be considered in construing or interpreting these Terms and Conditions.
12.12 Remedies Cumulative. Except as otherwise expressly provided in the applicable Order Form (including these Master Subscription Terms, any Additional Product Terms and any Attachments), all remedies provided herein are cumulative and in addition to and not in lieu of any other remedies available to a Party in connection with such Order Form, or at law or in equity.
12.13 Survival. In addition to any provisions above that expressly state that they survive termination, any provisions above that should reasonably survive termination in accordance with their respective terms will also so survive, as will any outstanding payment or tax obligation hereunder, and any cause of action or claim of either Party, whether in law or in equity.
12.14 Assignment. Customer may not assign the applicable Order Form or any rights or obligations under such Order Form, whether by operation of Law or otherwise, without the prior written consent of Vitu (which may be withheld in its sole discretion). Vitu may assign the applicable Order Form upon Email Notice to Customer.
