Universal Terms and Conditions of Use and End User License Agreement- KIA Digital Certified Solutions Program
IMPORTANT - READ CAREFULLY: These Universal Terms and Conditions of Use and End User License Agreement (these “Terms”) are a legal contract between Sanctus LLC (doing business as ShiftDigital) and you. Your enrollment for any Services authorizes Shift Digital to begin providing Services and billing you immediately. You agree to pay the applicable fees for Services as set forth in the electronic Fee Exhibit(s) incorporated herein by reference.
IN ORDER TO USE THE SOFTWARE, SERVICES, CONTENT, MAINTENANCE TOOLS AND WEB SITES (REFERRED TO COLLECTIVELY AS THE “SERVICES”), YOU MUST FIRST AGREE TO THESE TERMS BY CLICKING “ENROLL NOW” ON THE ENROLLMENT PORTAL AFTER YOUR SERVICE SELECTIONS HAVE BEEN MADE, OR BY SELECTING SERVICES AND SIGNING A SERVICES ENROLLMENT FORM. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ACCESS, OR IN ANY WAY USE, THE SERVICES AND IMMEDIATELY EXIT FROM THE SERVICES. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOUR USE OF THE SERVICES IS STRICTLY PROHIBITED.
You may not use the Services and may not accept these Terms if (a) you are not of legal age to form a binding contract with us, or (b) you are not authorized to bind the company for which the Services are being provided. Before you continue, you should print or save a local copy of these Terms for your records.
1. Provision of the Services by Us
1.1 We agree to provide the Services to you in accordance with the terms and conditions of these Terms. The definition of Services hereunder shall also include any online access to any enrollment portal, informational web pages, and/or online reporting service (collectively, the “Secure Web Services”) provided by Shift Digital or its Affiliates. Use of the Services is subject to the applicable policies of the search engines, website or network publishers (“Publishers”) on which display ads, videos or other advertising media (“Advertisements”) are posted or displayed in connection with the Services, including without limitation any Publisher’s editorial guidelines, privacy policies, trademark guidelines,andadspecificationrequirements(“Policies”). YouagreetocomplywiththePolicies while these Terms are in effect. Shift Digital or its Affiliates may modify Advertisements to comply with any Policies in its sole discretion.
1.2 We have affiliated legal entities, contractors, subcontractors, vendors, suppliers and other third parties (collectively referred to as “Our Affiliates” or when using the term “we,” “us” or “our” in these Terms we are including Our Affiliates, unless we specifically exclude them) that will provide Services to you on behalf of us. You acknowledge and agree that Our Affiliates will be entitled to provide the Services to you, and that to the extent permitted by applicable law, Our Affiliates shall be third party beneficiaries of these Terms with respect to the Services provided to you.
1.3 We are constantly innovating in order to provide the best possible Services for you. You acknowledge and agree that we can change the Services from time to time without prior notice to you.
1.4 You acknowledge and agree that we may stop (permanently or temporarily) providing the Services (or any features within the Services) to you at our sole discretion, without prior notice to you. If you wish to stop using the Services at any time, you agree to provide us with prior written notice of your intent to cancel receiving the Services in accordance with the provisions of Section 8 below.
1.5 We may disable access to your account for non-payment of Services. You acknowledge and agree that if we disable access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account. You acknowledge and agree that we will not be liable in any way for any inconvenience, delay, damages, losses or other claims related to disabling your access to your account.
2. Use of the Services by you
2.1 In order to access certain Services, you may be required to provide information about yourself and your business (such as identification, billing or contact details). You agree that any information you give to us will always be accurate, complete and up to date.
2.2 You agree to use the Services only for purposes that are permitted by (a) these Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
2.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by us. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers). Without limiting the foregoing, you agree not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of any Secure Web Service or other program associated with the Services.
2.4 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
2.5 You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
2.6 You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any breach of your obligations under these Terms and for the consequences of any such breach. Accordingly, you agree that you will be solely responsible to us for all activities that occur under your account and you will notify us if these Terms are breached or there are threatened claims against you related to the Services provided under these Terms.
2.7 You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
2.8 You agree and understand that you are responsible to maintain, as required under law, policy or contract, the confidentiality of information that you use, is provided to you or that you obtain as a result of your use of the Services.
2.9 You shall at all times comply with all applicable laws, legislation, rules, regulations, governmental requirements and industry standards with respect to your use of the Services and the performance by you of your obligations hereunder, including, but not limited to, any applicable provisions of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999 and regulations promulgated under that Act (collectively “GLB”) or other federal, state, and local laws, rules, regulations, and ordinances governing the privacy and security of customer information that apply to you. You agree to protect and maintain the privacy of such information accordingly.
2.10 You acknowledge that the Services we will be providing to you, among other things, allow you to designate administrators for the Services thereby granting certain rights and authorizations relating to, among other things, selection of, and preferences for, Services and billing. You agree that you are solely responsible to us, or any of Our Affiliates, as applicable, for any fees, costs or other expenses that may be charged by us, or any of Our Affiliates, as applicable, related to any selections made by you or your designees.
2.11 You acknowledge that as part of the Services you may receive use of and access to certain toll-free and local tracking phone numbers, as well as other services relating to such numbers (collectively, with the services, the “Number(s)”). You acknowledge and understand that when a person (the “Caller”) calls a Number, the Caller will be automatically advised that each call is subject to recording and monitoring prior to the connection of the telephone call to you through the Number (the “Recorded Call Message”).
You represent, warrant and agree that in connection with your use of the Services, that you have reviewed the legality of recording, monitoring, and storing, and divulging telephone calls, that you are permitted to engage in such activities, and that you shall use the Number in full compliance with all applicable laws and regulations. You represent and warrant that you have had the opportunity to review the proposed usage of the Numbers with your legal counsel, and that you have established proper procedures to protect the privacy of, and otherwise comply with all applicable laws with respect to, Callers and the Call Receivers (defined below). In the event the Recorded Call Message requires a revision in order to comply with applicable law, then you shall promptly notify us in writing of that fact, advising us as to the exact language necessary to comply with the applicable laws. You agree and acknowledge that none of us, Our Affiliates, or any of our or their respective third party providers accept any responsibility for (a) the legality of recording, monitoring, storing and/or divulging telephone calls and (b) the legality of the language used in the Recorded Call Message.
You agree and acknowledge that applicable laws and regulations may require that you provide notice to and/or receive express consent and permission from, in writing or otherwise, all agents (including employees), independent contractors, and/or other persons who receive telephone calls (the “Call Receivers”). You agree, acknowledge, represent and warrant that you will provide and/or obtain all notices, consents, and permissions relating to Call Receivers, as required by applicable laws and regulations.
You agree to indemnify, defend and hold harmless us, Our Affiliates, and our and their respective third party providers, and each of their affiliates, officers, shareholders, directors, employees and agents (collectively, the “Indemnified Parties”), from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, charges, expenses (including attorneys’ and accountants’ fees and disbursements) and costs (“Claims”), incurred by, borne by or asserted against any of the Indemnified Parties to the extent such Claims relate to, arise out of or result from: (i) any intentional or willful conduct or negligence of any of your employees, agents or subcontractors; (ii) breach of any of your representations, warranties or covenants contained herein; or (iii) your use of the Numbers.
2.12 You understand that part of the Services may include, among other things, the creation and posting of Advertisements on the World Wide Web and otherwise by us or our Affiliates on your behalf relating to your automotive dealership. You are solely responsible for all: (a) campaigns and budget allocation and management (creative or targets), whether generated by or for you; and (b) web site content, services and landing pages that create links, or directs viewers, to any advertised services and products. You understand and agree that Advertisements may be placed on any website or property provided by a Publisher upon which we or our Affiliates may select or you may request. You authorize and consent to all such placements. We or our Affiliates may reject or remove any Advertisement for any or no reason. You may not use or republish any Advertisements or other marketing materials provided to you by us and/or any of our Affiliates without our prior written consent.
2.13 If you subscribe to one or more Black Book® online trade-in tools, you understand and agree that your use of such online trade-in tools shall be subject to, and you agree to the additional terms and conditions set forth at, http://www.intelliprice.com/VeretechTC/TermsofUse.htm , which are incorporated herein by reference and made a part of the Agreement.
2.14_ If you subscribe to one or more Blue Book® online trade-in tools, you understand and agree that your use of such online trade-in tools shall be subject to, and you agree to the additional terms and conditions set forth at, http://b2b.kbb.com/atcleaddriver which are incorporated herein by reference and made a part of the Agreement.
3. Content in the Services
3.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the “Content”.
3.2 You acknowledge that Content presented to you as part of the Services, including but not limited to user interface “look and feel” elements, creative assets, advertisements, and incentives, may be protected by intellectual property rights which are owned or licensed by us or Our Affiliates. You may not modify, rent, lease, loan, sell, distribute, license or create derivative works based on any Content (either in whole or in part) unless you have been specifically notified that you may do so by us or by the owners of that Content, in a separate written agreement that you will provide to us.
3.3 We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service in our sole discretion.
3.4 You use the Services at your own risk.
3.5 You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you or a third party create, transmit or display while using the Services and for the consequences of these actions (including any loss, liability, fine or damage which we may suffer) by doing so.
3.6 You agree that the Content on your website and any Content you provide to us in connection with the Services shall not contain anything that infringes copyrights, trademarks, publicity or any other rights of others; violates any law or regulation, is defamatory or libelous; is abusive, harassing, or threatening; is obscene, vulgar, or profane; or violates someone’s privacy. You agree to indemnify, defend and hold harmless the Indemnified Parties, from and against any and all Claims incurred by, borne by or asserted against any of the Indemnified Parties to the extent such Claims relate to, arise out of or result from your breach of the provisions hereof.
4. Proprietary rights
4.1 You acknowledge and agree that we and Our Affiliates or licensors own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services contain information which is confidential and that you shall not disclose any such information without our prior written consent.
4.2 Nothing in these Terms gives you a right to use any of our or Our Affiliate’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, except in strict compliance with the license granted below.
4.3 You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
5. Licenses from Us
5.1 Subject to your compliance with all of the terms and conditions set forth herein, we hereby grant to you a limited, restricted, revocable, royalty-free, non-assignable, non- transferable, non-sub-licensable and non-exclusive license to use the Services provided to you, including the proprietary software, trademarks, copyrights and other proprietary elements of the Service. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided for herein, in the manner permitted by these Terms.
5.2 You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software provided with the Services (the “Software”) or any part thereof, or any of the other proprietary elements of the Service, or allow any third parties to use the Services, or any portion thereof, in any way.
5.3 The products and services of Our Affiliates may contain license terms specific to such products or services, and you agree to comply with all such license terms included in any click through or shrink wrap license or of which we otherwise make you aware.
5.4 You may not assign (or grant a sub-license of) your rights to use the Software, or any of the other proprietary elements of the Service, grant a security interest in or over your rights to use the Software or any other proprietary elements of the Service, or otherwise transfer any part of your rights to use the Software or any other proprietary elements of the Service.
6. Content License from You
6.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the Content, however, you grant to us and Our Affiliates a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling us to display, distribute and promote the Services.
6.2 You agree that this license includes a right for us and Our Affiliates to make such Content available to other companies, organizations or individuals with whom we have relationships for the provision of these Services.
6.3 You understand that we, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit us to take these actions.
6.4 You confirm and warrant to us that you have all the rights, power and authority necessary to grant the above license.
6.5 You further hereby authorize us and any publisher, and any such other third party service provider that produces, collects or receives data pertaining to your website, your advertising activity, or any of your other business activities, to transfer, provide or otherwise make available such data to us in connection with our providing the Services to you hereunder.
6.6 In the event the performance of the Services requires us or our Affiliates to access your computer systems to collect data or perform the Services, you specifically request and authorize such access and will provide, and have all rights and authorizations required to provide, such access. You understand and agree that we and/or our Affiliates may engage a data polling service to poll and transmit data from your DMS or other computer systems. You hereby grant to us and of our Affiliates a royalty-free, non-exclusive, non-transferable, non- cancelable license to use sales and inventory data (to the extent available) obtained from your computer systems solely for the purposes of (i) performing the Services for you, (ii) consumer, vehicle, and industry research and reference, (iii) evaluation of sales lead performance, (iv) combining with other data to create proprietary market price and incentive guides, and (v) the generation of market analysis data and related products; provided, the sales and inventory data shall not be used to disclose to any third party the your name or the name of any consumer, and shall not be sold to any third party.
7. Payment for Services
7.1. You agree to pay the fees for the Services in the amounts set forth in the online registration process or, if an order form was used, on the order form. The fees for the Services shall be billed to and you agree to pay the fees for the Services through, and in accordance with the terms of, your KMA parts statement; provided, that in the event billing through the KMA parts statement is not feasible, we may invoice you directly for the Services and you agree to pay such invoice within 45 days of receipt. Except as set forth otherwise herein, all charges for the Services will be due and payable as specified on and consistent with the payment terms of your KMA parts statement.
7.2 In addition to the other rights reserved to us hereunder, we expressly reserve the right to terminate your Services and disable your access to the Services for non-payment of any invoice. Balances due on an outstanding invoice shall bear interest to the maximum amount allowable under the law until paid in full.
7.3 All fees are subject to applicable sales, use, excise or similar taxes, whether or not included at the time the fees are billed. You assume exclusive liability for, and shall pay before delinquency, all sales, use, excise and other taxes, charges or contributions of any kind now or hereafter imposed on, with respect to, or measured by the Services except for taxes based on the net income of Shift Digital or its Affiliates.
8. Cancelling the Services
8.1 These Terms will continue to apply until terminated by either of us as set out below.
8.2 If you want to cancel your Services with us, you may do so by providing us with advance written notice. Cancellations that occur on or before the 10th day of the month will be effective as of the end of that month and you will be billed for the Services, and be responsible for payment of the Services, through the end of that month. Cancellations that occur after the 10th day of the month will be effective at the end of the following month and you will be billed for the Services, and be responsible for payment of the Services, for the remainder of that month and the following month.
8.3 We may, at any time, terminate these Services if: (a) you have breached any provision of these Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of any of these Terms); or (b) we are required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or (c) the Affiliate with whom we offered the Services to you has terminated its relationship with us or ceases to offer the Services, or any part thereof, to you; or (d) the provision of the Services to you by us is, in our sole opinion, no longer commercially viable, or (e) we provide you with thirty (30) days prior written notice of an intent to terminate your Services with or without cause.
8.4 The provisions of Sections 1.4, 2.5, 2.6, 2.8, 2.11, 2.12, 3.2, 3.5, 3.6, 4, 5.2, 6, 7.2, 8, 9, 10, and 12 shall survive the termination of these Terms and the Services.
9. EXCLUSION OF WARRANTIES
9.1 NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT THE WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” IN PARTICULAR, WE AND OUR AFFILIATES, AND OUR LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (D) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
9.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
9.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US, ANY OF OUR AFFILIATES, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
9.5 WE FURTHER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
10.1 SUBJECT TO OVERALL PROVISIONS ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER WE, NOR OUR AFFILIATES OR OUR LICENSORS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF: (I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY DURING YOUR USE OF THE SERVICES; (II) ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (III) YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR (IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL. SHIFT DIGITAL’S LIABILITY HEREUNDER, IF ANY, SHALL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE MONTHLY SERVICE FEE PAID BY YOU FOR THE MONTH IN WHICH THE DEFECT OR BREACH OCCURRED. THE PARTIES AGREE THAT THAT THE AGGREGATE MAXIMUM LIABILITY OF SHIFT DIGITAL AND ITS AFFILIATES AND EACH OF THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND LICENSORS UNDER THESE TERMS FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE LAST EVENT GIVING RISING TO LIABLITY.
10.2 THE LIMITATIONS ON OUR LIABILITY TO YOU, ABOVE, SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
11.1 YOU AGREE TO DEFEND, INDEMNIFY AND HOLD KMA, SHIFT DIGITAL, AND ITS AFFILIATES, AND EACH OF THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND LICENSORS HARMLESS FROM AND AGAINST ALL LOSS, CLAIMS, DEMANDS, CAUSES OF ACTIONS, AND ADMINISTRATIVE OR REGULATORY ACTIONS OF WHATEVER KIND OR CHARACTER, BROUGHT BY ANY THIRD PARTY, AND INCLUDING COSTS, ATTORNEYS’ FEES AND EXPENSES, RELATING TO THE SERVICES PROVIDED UNDER THESE TERMS AND/OR YOUR PRODUCTS AND SERVICES, AND/OR ARISING FROM OR RELATED TO A BREACH THESE TERMS OR ANY REPRESENTATION OR WARRANTY MADE BY YOU UNDER THESE TERMS, BUT EXCLUDING CLAIMS, DEMANDS AND CAUSES OF ACTIONS ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON OR ENTITY SEEKING INDEMNIFICATION.
11. Changes to these Terms
11.1 We may make changes to these Terms or put into place Additional Terms from time to time at our discretion. When these changes are made, we will notify you and make a new copy of these Terms available on the maintenance tool point of entry for the Services.
11.2 You understand and agree that if you use the Services after the date on which these Terms or any Additional Terms have changed, we will treat your use as acceptance of the updated Terms or Additional Terms.
12. General legal terms
12.2 You agree that we may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Services.
12.3 You agree that our failure or delay in exercising or enforcing any rights or remedies that are available to us under these Terms (or that we have the benefit of under any applicable law or otherwise) shall not be deemed to be a waiver of any of our rights or remedies and that all of such rights and remedies will remain available to us.
12.4 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of these Terms. The remaining provisions of these Terms will continue to be valid and enforceable.
12.5 These Terms, and your relationship with us under these Terms, shall be governed by the laws of the State of Michigan without regard to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction of the courts located within the State of Michigan to resolve any legal matter arising from these Terms. Notwithstanding this, you agree that we will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
12.6 KMA and Affiliate shall be deemed third party beneficiaries of the indemnification and limitation of liability provisions of these Terms. Except as expressly set forth herein otherwise, there are no, and shall not be any, third party beneficiaries of these Terms.
12.7 Force Majeure. Each party hereto shall be excused from performance hereunder, except for payment obligations, and to the extent that it is prevented from performing any obligation hereunder, in whole or in part, as a result of delays caused by the other party or an act of God, war, civil disturbance, court order, labor dispute, third party nonperformance or other cause beyond its reasonable control, including failures, fluctuations or non- availability of electrical power, heat, light, air conditioning, computing or information systems or telecommunications equipment or the inability of hardware or software leased or acquired by sale or license from third parties to process without error or malfunction any date data. Such nonperformance shall not be a default or ground for termination as long as reasonable means are taken to remedy expeditiously the problem causing such nonperformance.
12.8 You may not assign these Terms without the prior written approval of Shift Digital, except that no approval shall be required to assign these Terms to any person or entity which is, directly or indirectly, controlling, controlled by, or under common control with, you. These Terms may be assigned by Shift Digital. These Terms shall be binding on and inure to the benefit of the parties and their respective successors and assigns.
Universal Terms and Conditions of Use and End User License Agreement- KIA Digital Certified Solutions Program