Terms & Conditions
Updated 12/11/2024
Introduction
All Services, as defined below, purchased from Augmented Reality Concepts, Inc., a Delaware corporation (“Impel”) by a customer (the “Client”) pursuant to an order form entered into by Impel and Client that references these Terms and Conditions (an “Activation Agreement”), shall be governed by these terms and conditions (“Terms and Conditions”), which, together with the Activation Agreement and any other policies, terms or agreements referenced herein or therein shall constitute the entire agreement between the parties (collectively, this “Agreement”). These Terms and Conditions may be updated by Impel from time to time (the Terms and Conditions as updated, the “Updated Terms”) by delivering notice of the Updated Terms to the Client by email, mail, or posting to Impel’s website. Updated Terms shall be deemed accepted by Client unless Client provides written notice of non-acceptance to Impel within five (5) days of receipt of notice of the Updated Terms, which notice shall include the specific aspects of the Updated Terms that are objectionable. Following such notice of non-acceptance, Client shall continue to be bound by the Terms and Conditions that were in effect immediately prior to the notice of Updated Terms. From and after the date of notice of the Updated Terms, upon any renewal of any Activation Agreement to which Client is a party, or if Client enters into a new Activation Agreement, then all Activation Agreements then in force between Client and Impel shall at such time automatically and without further action be governed by (and Client shall be bound by) the Updated Terms.
1. SERVICES AND SUPPORT.
1.1 Services Generally. Subject to the terms of this Agreement, Impel will provide services to Client that include access to certain Products (inclusive of the Products, the “Services”) on the particular terms set forth in the applicable Activation Agreement (which may limit the Services to specific structures or buildings at a certain locations, each with a single street address (“Location(s)”)).
1.2 Product Use and Access
1.2.1 Subject to Client’s compliance with the terms of this Agreement, including its payment of all fees and other charges payable or expenses reimbursable by Client as set forth in the Activation Agreement (collectively, the “Fees”), Impel hereby grants to Client a nonexclusive, limited, nontransferable, non-sublicensable right to access and use Impel’s software application(s) as selected by Client and further described in the applicable Activation Agreement (the “Products”), (i) in support of Client’s business purposes, (ii) only for vehicles that are owned by Client and located at the Location(s) and for no other vehicles or goods whatsoever, (iii) for the Term, and (iv) in accordance with this Agreement. For the purposes of this Agreement, “vehicle” shall not exclusively mean automotive vehicles, but shall include all machines designed for transporting people or goods, including for powersport and aquatic uses.
1.2.2 The Services may only be accessed by employees, representatives, or downstream customers (to the extent applicable) of Client authorized by Client (“Authorized Users”) who (i) have established a valid password and username (“Credentials”), (ii) have agreed to abide by the terms and conditions of the Acceptable Use Policy at www.impel.ai/acceptable-use-policy/ (or any successor website), and (iii) have accepted the Impel Privacy Policy at www.impel.ai/privacy-policy/ (or any successor website) and the Impel Cookie Notice at www.impel.ai/cookie-notice/ (or any successor website). Client shall be solely responsible for: (a) all Credentials established by or on behalf of Client and any Authorized User, (b) verifying the identity of each Authorized User and validating use of Credentials by each Authorized User, and (c) monitoring Authorized User access to the Services to ensure that only those permitted to access and use the Services do so. Client shall institute contractual, technological and/or functional procedures and processes as necessary to monitor use of Credentials and to protect and require Authorized Users to protect their Credentials. As between Impel and Client, Client shall assume all responsibility and liability with respect to access and use of the Services by or on behalf of Client and all Authorized Users, whether or not such access is a result of compromised, lost, or stolen Credentials or Client hardware, including ensuring compliance with all of the obligations and restrictions set forth in this Agreement and with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority in any territory that has jurisdiction over the parties, whether those laws, etc., are in effect as of the first date on which an Activation Agreement is executed (the “Effective Date”) or later come into effect during the Term (“Applicable Law”).
1.2.3 Client may not remove or export from the United States or allow the export or re-export of the Services, or anything related thereto, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services and Documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
1.2.4 Client shall promptly inform Impel of any unauthorized use of the Services or breach of this Agreement or Applicable Law, as applicable or related to this Agreement, by Client or any of its Authorized Users. Furthermore, Client agrees to promptly notify Impel in writing within thirty (30) days of an actual or alleged incident or complaint or other material matter relating to the Services so that Impel may have a reasonable opportunity to remedy or mitigate the same before further escalation can occur. Impel will not be responsible for any actual, alleged or perceived issue not promptly brought to Impel’s attention by Client within thirty (30) days of the initial incident.
1.3 Service Levels: The Services, and implementation thereof, as applicable, will meet or exceed the minimum service level standards set out in the Service Level Agreement at www.impel.ai/service-level-agreement/ (or any successor website). In the event any such standard is not met or exceeded, as Client’s sole remedy, Impel will promptly notify Client, promptly take corrective action to remedy the problem and take preventative measures so that the failure does not recur.
1.4 Activation Agreement Modification. Following the Effective Date, Client may amend the Activation Agreement, with Impel’s prior written consent, by adding additional Products to Client’s subscription package included in such Activation Agreement (“Added Products”). Any such Added Products will be subject to the terms and conditions of the existing Activation Agreement and the term of such Added Products will run coterminous with the Activation Agreement, provided, however, that the fee for such Added Products will be prorated such that Client will begin to incur fees for such Added Products as of the effective date of the amended Activation Agreement. Without limiting any other restriction on cancellation or removal of Products, in no event may Client cancel or remove a Product from their subscription package if other Products included in Client’s subscription package are dependent on such Product. For purposes of this Section, a Product is “dependent” on another if such Product requires the use of another Product to properly function and perform in accordance with Impel Documentation. Product dependencies are further identified in the Services Rider at www.impel.ai/impel-services-rider/ (or any successor website).
1.5 Compliance. Client will use the Services (and will ensure that use of the Services by or on behalf of Client and Authorized Users is) solely in compliance with this Agreement, the Acceptable Use Policy, and all Applicable Law.
1.6 Equipment; Hardware. Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and related information, and the like, and for paying all associated third-party access charges (collectively, “Requisites”). Client shall also be responsible for the Requisites in all respects, including maintaining the security of the Requisites. Any hardware purchased by Client from Impel is covered by the manufacturer’s warranty, if any, and not by Impel. Impel shall not be held liable to Client for any defects or flaws in hardware. Any issues with hardware are to be resolved by the manufacturer and not Impel.
1.7 Implementation. Impel will perform certain implementation services if and to the extent expressly set forth in the Activation Agreement, which may consist of tasks such as importing and formatting Client-provided content into the Services during the Implementation Period (as defined below) (each an “Implementation Plan”). Each of Impel and Client will fulfill its respective obligations under the Implementation Plan and will cooperate with the other to permit the timely performance thereunder. Impel’s obligations under the Implementation Plan are contingent upon Client’s full and timely performance of its obligations, Client’s reasonable cooperation and any assumptions included in the Activation Agreement or otherwise communicated by Impel to Client. All dates and fees under the Implementation Plan are estimates made for project planning purposes only. Any changes to the scope of the Implementation Plan shall become effective only upon the execution of a written amendment by authorized representatives of Impel and Client.
1.8 Restrictions. Client shall not resell any content created by the use of or resulting from the Services, or allow access to the Services except for the sole benefit of Client in the conduct of the Client’s regular business at the Location(s) as designated in the Activation Agreement. Following the termination of an Activation Agreement, Client shall not access or utilize the applicable Services in any manner. Client shall not use, or allow others to use, the Services in any manner other than as expressly allowed in this Agreement. Client may not (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of a Service or its structural framework, (ii) sublicense, subcontract, translate, license or grant any rights to the Services (including without limitation allowing any distribution or sublicense of the Services or other access to the Services by any person or entity that is not Client), (iii) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services, (iv) harvest or collect information about or from other users of the Services (v) probe, scan or test the vulnerability of the Services, or breach the security or authentication measures on the Services, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services (vi) modify or create derivative works of the Services, (vii) attempt to gain unauthorized access to the Services or its related systems or networks, (viii) use the Services in whole or in part for any illegal purpose, or (ix) facilitate or encourage any violations of this Section 1.8. Client shall (a) take all reasonable precautions to prevent unauthorized or improper use of the Services, (b) not interfere with or disrupt the integrity or performance of Services, (c) not attempt to gain unauthorized access to the Services or its related systems or networks, and (d) not create Internet “links” to the Services or “frame” or “mirror” any content therein.
1.9 Suspension. Impel may suspend Client’s access to the Services in whole or in part, including with respect to specific Locations, if Client or any Authorized User breaches this Agreement or if Client’s or any Authorized User’s actions or inactions risk harm to Impel or other customers or the security, availability or integrity of the Services. Where practicable, Impel will use reasonable efforts to provide Client with prior notice of the suspension. Once Client resolves the issue requiring suspension to Impel’s satisfaction, Impel will promptly restore Client’s access to the Services.
2. TERMS OF PAYMENT. Client shall pay Impel the Fees as set forth in the Activation Agreement. Pricing for use of any of the Services shall be as set forth in the applicable Activation Agreement. Unless restricted by the Activation Agreement, Impel may raise pricing at Impel’s sole discretion. During the Implementation Period, Client shall pay Impel the Implementation Fee (if any), as set forth in the Activation Agreement. Unless otherwise set forth in the Activation Agreement, beginning as of the effective date of expiration of the Implementation Period and for the remainder of the Term, Impel will invoice Client list price for the Services and Client shall be obligated to pay same. Unless otherwise set forth in the Activation Agreement, Client will be invoiced for applicable Fees on a monthly basis, in advance. Impel may use a third party payment service to bill Client through an online account or by pre-approved credit card of ACH debits (specific remittance information will be provided in the Activation Agreement) By submitting payment account information, Client authorizes Impel to initiate debits to Client’s checking or savings account indicated at Client’s depository financial institution and to debit the same to such account. Client hereby grants Impel the right to store and process such information with the third party payment service and agrees that Impel will not be responsible for any failures of the third party, including any failure to adequately protect such information. Such authorizations shall continue and shall remain in full force and effect until cancellation, termination or expiration of this Agreement and Client agrees to execute and provide to Impel all authorizations and other documents necessary to affect the foregoing payments. The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to this Agreement. Full payment for invoices issued in any given month must be received by Impel within thirty (30) days after the mailing date of the invoice. Amounts outstanding beyond the applicable due date will be subject to a late payment charge at the lesser of one and one-half percent (1.5%) per month or the highest rate permissible under Applicable Law for the actual number of days elapsed. Unless stated differently in the Activation Agreement, all billing and payment will be in United States dollars. All fees and payments hereunder are nonrefundable and exclusive of all taxes, including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (except taxes on the income of Impel), and Client agrees to pay such taxes, whether federal, state, local, or municipal. If Client fails to make payments when due, Impel may, upon notice to Client, (i) suspend Client’s access to, use and/or performance of Services, until such payments are made or (ii) terminate this Agreement. Client will continue to be charged Fees during any period of suspension. Client agrees and acknowledges that Impel has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if Client’s account is delinquent for thirty (30) days or longer.
3. SERVICE SPECIFICATIONS AND REQUIREMENTS.
3.1 Usage Data. Impel may monitor any and all use of the Services by Client and its users. Impel may gather Client system and usage data including but not limited to analytics data, including metadata, relating to the provision, use, and performance of various aspects of the Services, third-party integrations, and related systems and technologies, including information concerning Client’s use of the various features and functionality of the Services, and analytics and statistical data derived therefrom (“Usage Data”). Impel may collect, analyze, and use Usage Data to operate, enhance, improve, optimize and develop Impel products and services, including through model training, and otherwise in connection with Impel’s business. Impel may disclose Usage Data only where, (i) such data and information are aggregated and do not identify individuals, Client, or its users and (ii) such data and information shall not be identifiable as originating from Client or any of its users.
3.2 Service Changes. Impel may make changes, upgrades and improvements to the Services available to Client from time to time. Impel may modify or delete any features or specifications of the Services, or substitute old features with new features that have similar or improved functionality, as may be necessary to meet Applicable Laws or industry-standard requirements or demands or requirements of third party service providers. Nothing in this Agreement shall require that Impel maintain compatibility of any content generated by Client after termination of this Agreement.
4. INTELLECTUAL PROPERTY.
4.1 Reservation of Rights. All rights not expressly granted to Client herein are expressly reserved by Impel. As between the parties, the Services and all Usage Data are and will remain the exclusive property of Impel, and Impel will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in the Services and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, and all derivative works thereof, including any software, applications, inventions or other technology developed in connection with Services, or support, and the Usage Data, and Client will have no right, title, or interest in or to the same. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Impel’s or its licensors’ existing or future rights in or to the Services or the Usage Data. Impel trade names, trademarks, service marks, titles, and logos, and any goodwill appurtenant thereto, shall be owned exclusively by Impel and shall inure solely to the benefit of Impel.
4.2 Use of Impel Marks. Impel hereby grants to Client a limited, non-exclusive, non-sublicensable, non-transferable right during the Term to use Impel’s trademarks, trade names, service marks, logos or other designations used or adopted by Impel with respect to or in connection with the Services, whether registered or unregistered (collectively, the “Trademarks”), in promoting the Services, provided that (i) all such use shall inure to the exclusive benefit of Impel, (ii) prior to Client’s use of the Trademarks, Client shall receive Impel’s advance written approval of each such use, (iii) Client shall indicate Impel’s ownership of the Trademarks in each such use, (iv) Client must comply with any specifications and requirements provided by Impel regarding the use of the Trademarks, and (v) Client shall not, without Impel’s prior written consent, remove or alter any Trademark applied to the Services. In addition to the permitted purposes enumerated above, Impel shall have the right to approve in advance any further use of its Trademarks by Client. Client expressly acknowledges and agrees that (a) it will not have or acquire any right in or to any Trademark; (b) Impel owns and possesses the exclusive right, title and interest in and to the Trademarks; and (c) Client will not dispute the ownership by Impel of any Trademark. Client agrees that it will not adopt, use or register as a trademark, service mark, trade name, business name, corporate name or any part thereof, any word or symbol or combination thereof which is identical or confusingly similar to any Trademark. Upon termination of this Agreement, Client shall immediately discontinue all use of each Trademark, and Client shall return or, at Impel’s direction, destroy all papers, documents, and other materials on which any Trademark appears.
4.3 Violations of Law; Misuse of Intellectual Property. Impel may immediately suspend provision of or access to the Services at any time, without notice to Client and without liability, if Impel suspects or becomes aware that the Services or the use thereof may infringe or violate any third party rights, or may violate Applicable Law. Impel may suspend Client’s and its users’ access to and use of the Services in order to comply with Applicable Law.
4.4 Client Data.
4.4.1 Client Data. “Client Data” means any information, content, or materials that Client submits to or through the Service, and depending on the Service(s) used by Client, may also include (i) the photographs, videos, information and other copy or data, and all derivatives and transformations thereof, from Client’s own vehicles and the relevant vehicle manufacturers with whom Client has an agreement (each, an “OEM”), (ii) items obtained from the OEM directly, or from the OEM’s websites and other publicly displayed areas on the Internet and otherwise, to be used in any content created or displayed by, for, or on behalf of Client, and (iii) any content, data, or information that Client authorizes Impel to use or obtain as part of the Services pursuant to this Agreement.
4.4.2 Ownership and Use. Client retains ownership of its Client Data. Client hereby grants to Impel and its relevant service providers a worldwide, limited, nonexclusive, license to access, store, reproduce, handle, perform, transmit, test, modify, process, combine with other data, distribute, display and otherwise use the Client Data (i) as necessary to provide, maintain, operate, and update the Services and to provide support for the Services; (ii) to prevent or address service, security, support or technical issues; and (iii) as required by Applicable Law. Impel may use Client Data to operate, enhance, improve, and develop Impel products or services through model training and Client instructs Impel to use Client Data for such purposes.
4.4.3 Representations and Obligations. Client shall be solely responsible for the accuracy, quality, content, and legality of its Client Data, and any actions triggered by Client Data. Client represents and warrants that: (i) Client has obtained all necessary rights, releases, and permissions to transmit Client Data to or through the Service and for any actions triggered by Client Data on the Service, and to otherwise use, process, and/or store Client Data on the Service used or stored; and (ii) Client Data, and its transmission, processing, storage, and use as Client authorizes in this Agreement or through Client’s use of the Services will not violate any laws or regulations, this Agreement, the rights of any third party, or the terms of any applicable third-party services. Client will inform Impel in writing and in advance of any restrictions or limits as to the use of the Client Data and Impel shall abide by same, provided that if such restrictions or limitations impact Impel’s ability to provide the Services as set forth in this Agreement, Impel shall have the right to terminate this Agreement upon notice to Client. Impel reserves the right to remove any Client Data from its servers for any reason, without prior notice.
4.4.4 Name and Logo. Impel may not use Client’s name, logo and/or trademark for any public relations and marketing purposes without Client’s prior written consent. Except as set forth above, there shall be no public announcement of this Agreement or the relationship between the parties without mutual review and approval by both parties, except as part of required governmental filings, SEC filings, quarterly earnings announcements, and/or financial presentations.
4.4.5 Personal Data. To the extent that Impel processes any Personal Data (as defined in the DPA) contained in the Client Data that is subject to Data Protection Laws (as defined in the DPA), Impel’s Data Processing Agreement (“DPA”) for controller to processor and processor to processor shall apply to such processing.
4.4.6 No Sensitive Data. Client shall not upload, transmit, or cause to be uploaded or transmitted, any data that is subject to heightened privacy or security requirements by law or regulations, including, without limitation, any personal financial or medical information of any nature, or any sensitive personal information (e.g., government-issued identification numbers, driver’s license numbers, personal bank account numbers, passport or visa numbers, credit card numbers, passwords and security credentials) (collectively, “Sensitive Data”). Impel shall have no liability under this Agreement for any Sensitive Data in violation of the foregoing.
4.5 Feedback. The parties acknowledge and agree that Impel may solicit and Client may provide to Impel suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the “Feedback”). Client hereby grants to Impel a nonexclusive, perpetual, irrevocable, royalty-free right and license to disclose, use and incorporate the Feedback for any lawful purpose.
5. TERM AND TERMINATION.
5.1 Term. Unless specifically stated in the Activation Agreement, the implementation term of this Agreement commences as of the Effective Date and expires on the earlier of the date the Services have been implemented by Impel or first day following the second (2nd) full calendar month following the Effective Date.(the “Implementation Period”). Impel may reasonably extend the Implementation Period with notice to Client. The initial term of this Agreement commences as of the effective date of expiration of the Implementation Period and shall continue for the time period as set forth in the Activation Agreement (the “Initial Term”). The term of this Agreement shall thereafter automatically renew for additional periods of equal duration to that of the Initial Term (each, a “Renewal Term”) unless either party notifies the other party of its intent not to renew. For Activation Agreements with either an Initial Term or Renewal term equal to thirty (30) days (i.e. one month) either party must provide the other party written notice to terminate at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term (as applicable), in which case, the term of this Agreement will terminate on the last day of such Initial Term or Renewal Term, as applicable. For Activation Agreements with either an Initial Term or Renewal Term greater than thirty (30) days, either party must provide the other party written notice to terminate at least ninety (90) days prior to the expiration of the Initial Term or the then current Renewal Term (as applicable). Subject to earlier termination as provided below, the term of this Agreement is for the Implementation Period, the Initial Term, and each Renewal Term (collectively, the “Term”).
5.2 If either party materially breaches any term or condition of this Agreement, and if such breach has not been cured by the breaching party within five (5) days after its receipt of notice of such breach, the non-breaching party may immediately terminate this Agreement. Impel may immediately terminate this Agreement by written notice to Client if Client breaches Section 4. Each party may terminate this Agreement immediately upon written notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, or if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of filing.
5.3 Effect of Termination. Expiration or termination of this Agreement shall immediately terminate all subscription, access and any other rights granted to Client herein. Upon the expiration or termination of this Agreement, except as otherwise provided herein, Impel will have no further obligations to Client, and will have no obligation to maintain, deliver or provide access to any Client Data. Except for Impel’s termination of this Agreement pursuant to Section 5.2, upon the expiration or termination of this Agreement Impel shall, at Client’s reasonable request and subject to these Terms and Conditions, provide transition assistance services as reasonably requested by Client, at reasonable rates mutually agreed to by the parties, for a period of up to ninety (90) days after the effective date of termination. Sections 4, 5.3, 7, 8, 9, 10.4, 11, 12 and 13 will survive expiration or termination of this Agreement.
6. FORCE MAJEURE. Neither party shall be liable for nonperformance or delay in the performance of any obligations hereunder when such nonperformance or delay is the result of, or attributable to circumstances beyond such party’s reasonable control, which may include the elements, acts of God, governmental authority, strikes, lock-outs, labor troubles, failure of power, riots, insurrection, war, delays in transportation, manufacturer’s or supplier’s delays in providing parts, products or solutions to problems, whether or not similar to the above causes and whether or not foreseeable. In any such event, both parties agree to make a good faith effort to meet their obligations hereunder, and the party seeking to be excused shall promptly notify the other party of the event causing, or expected to cause, the delay and the anticipated duration of the delay. This Section does not apply to a party’s payment obligations.
7. GOVERNING LAW AND VENUE. These Terms and Conditions shall be construed and enforced in accordance with the laws of the State of New York without regard to conflicts of law principles. The parties mutually consent and submit to the sole jurisdiction of the federal and state courts for Onondaga County, NY, and agree that any claim or other action of any kind in connection with this Agreement or otherwise between the parties shall be brought only in the federal or state courts located in Onondaga County, New York; provided, however, that either party may bring an equitable action in any court having jurisdiction with respect to a breach or threatened breach by the other party of this Agreement, and provided further that Impel may bring an action in any court having jurisdiction over Client. The parties mutually acknowledge and agree that they will not raise, in connection with any suit, action or proceeding brought in any federal or state court for Onondaga, NY, any defense or objection based upon lack of personal jurisdiction, improper venue, or inconvenience of forum.
8. WAIVER OF CLASS ACTION. Any claims brought by either party must be brought in that party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither party will participate in a class action or class-wide arbitration for any claims covered by this Agreement. Client hereby waives any and all rights to bring any claims related to this Agreement, including related to any of Impel’s policies, as a plaintiff or class member in any purported class or representative proceeding. Client may bring claims only on its own behalf.
9. CONFIDENTIALITY.
9.1 Confidential Information. Each party acknowledges and understands that, except as set forth in Section 9.2, any and all technical, trade secret, and business information, including, without limitation, financial information, business or marketing strategies or plans, product development or customer information, and information otherwise obtained by the other, its affiliates, employees, representatives or other agents pursuant to this Agreement (the “Confidential Information”) is confidential and proprietary, and is of great value and importance to the success of the owner’s business. Non-public elements of the Products and Services and the terms of this Agreement constitute Impel’s Confidential Information.
9.2 Exceptions. The parties shall have no obligation hereunder with respect to any information that the receiving party can demonstrate is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; or (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the disclosing party and which third party rightfully acquired such information. The fact that any portion of the Confidential Information may be subject to one of the foregoing exceptions (i) through (iii) shall not automatically exclude any combination of Confidential Information from protection under this Section 9 unless the entirety of such Confidential Information also falls under the same exception(s). A disclosure by receiving party of disclosing party’s Confidential Information shall not be a violation of receiving party’s obligations under this Section 9 if receiving party is legally compelled to disclose such Confidential Information pursuant to a subpoena, summons, order or other judicial or governmental process, provided the receiving party (a) provides prompt notice of any such subpoena, order, etc. to the other party, so that such party will have the opportunity to obtain a protective order, (b) reasonably cooperates with the disclosing party in seeking such protective order, and (c) only discloses that portion of the disclosing party’s Confidential Information which it is legally required to disclose, based upon the advice of its counsel.
9.3 Obligations. Both parties shall maintain as confidential and shall not disclose the other party’s Confidential Information to any third party (except to those of receiving party’s and its affiliates’ employees, agents or contractors (the “Representatives”) who (i) need to know such Confidential Information in furtherance of this Agreement, (ii) have in turn been advised of the confidential nature of such Confidential Information, and (iii) have been bound by confidentiality obligations at least as restrictive as those set forth hereunder), copy, or use for purposes other than in connection with its use of the Services as authorized hereunder, the other party’s Confidential Information. Each party agrees to protect the other party’s Confidential Information with the same degree of care a prudent person would exercise to protect its own confidential information and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Each party shall be liable under this Agreement to the other for any use or disclosure in violation of this Agreement by its Representatives.
9.4 Ownership; Return of Confidential Information. As between the parties, all Confidential Information shall be owned solely by the disclosing party. Upon the written request and instruction of the disclosing party, the receiving party shall promptly return, destroy or delete all of the disclosing party’s Confidential Information in its possession or control and in all forms. Upon the request of the disclosing party, the receiving party shall confirm in writing, by way of a certificate of a senior officer, the return, destruction or deletion (as applicable) of all of the disclosing party’s Confidential Information. Notwithstanding the foregoing, any Confidential Information of disclosing party that cannot be reasonably returned or destroyed (e.g. copies of electronically exchanged Confidential Information made as a matter of routine information technology backup or that must be stored according to provisions of mandatory law or regulation) shall continue to be subject to confidentiality and non-use obligations according to the terms and conditions set forth herein.
10. WARRANTIES; DISCLAIMERS.
10.1 Mutual Warranties. Each party hereby represents and warrants that: (i) it has the right to enter into this Agreement, to grant the licenses granted herein and to perform its obligations hereunder, in each instance without the consent of a third party; (ii) when executed and delivered, this Agreement shall be each party’s legal, valid, and binding obligation enforceable in accordance with its terms; (iii) it shall comply with all Applicable Law concerning its activities pursuant to this Agreement.
10.2 Client Warranties. Client represents, warrants and covenants that (i) Client has received all third party consents and certifications for Impel to use and display the Client Data as set forth herein; (ii) Client will comply with all Applicable Law with respect to its and its Authorized User’s access to and use of the Services; (iii) the Client Data does not contain any libelous or slanderous materials and is not otherwise objectionable; (iv) it has all necessary right, title and interest to use any trademarks, service marks, logos, graphics, portraits, photographs, pictures and artwork contained in the Client Data; (v) the Services and this Agreement and the Client’s use of the Services, as envisioned by this Agreement, do not violate any third-party agreement to which the Client is a party, including any agreement or policy of an OEM that the Client is affiliated with as a dealer or otherwise; and (vi) no Client Data is false, inaccurate, misleading, fraudulent, or untrue in any way and that such Client Data accurately depicts any products or services offered to customers or prospective customers of the Client, and Impel has no obligation to analyze, inspect, audit, validate, or otherwise review any Client Data.
10.3 Impel Warranties. Impel represents and warrants to Client that (i) its obligations hereunder shall be performed by qualified professional personnel, consistent with standards prevailing in the industry and (ii) when used in accordance with Impel’s standard user guide, manual or other explanatory materials regarding the Services as provided by Impel to Client, including as modified or updated by Impel from time to time (the “Documentation”), the Services will comply in all material respects with the Documentation during the Term (“Service Warranty”). Impel’s sole obligation under the Service Warranty, and Client’s sole and exclusive remedy for any breach of the Service Warranty, shall be for Impel to use commercially reasonable efforts to correct any nonconformity.
10.4 Disclaimers. Except for the warranty provided in Section 10.3, the Services are offered “AS IS” and Impel expressly disclaims all other warranties, whether express, implied, statutory, or otherwise regarding the Services and any information, materials and services provided hereunder, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. Impel makes no warranty that the Services will be available, error-free, completely secure, virus free, or without interruption, or that their functions will meet any particular requirements, or that program defects or errors are capable of correction or improvement. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications and Impel is not responsible for any delays, delivery failures, or other damage resulting from such problems. Client accepts sole responsibility for, and acknowledges that it exercises its own independent judgment in, its selection and use of Client Data and any results obtained therefrom. Impel shall not be liable to Client for compensation, indemnification, reimbursement, or damages on account of the loss of customers, prospective profits on anticipated sales or on account of expenditures, inventory, investments, leases, or commitments made in connection with this Agreement or in connection with the business or goodwill of Client. CLIENT EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE REPARATIONS BY VIRTUE OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. Client agrees that it has no expectation and has received no assurances (i) that its business relationship with Impel will continue beyond the Term; (ii) that any investment by Client in the promotion of the Services will be recovered or recouped in any way, or (iii) that Client will obtain any anticipated amount of profits by virtue of this Agreement or otherwise, or any vested, proprietary or other right in the promotion of the Services or in any goodwill created by its efforts hereunder. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR IMPEL TO ENTER INTO THIS AGREEMENT AND THAT IMPEL WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
10.5 Third Party Data. The Services may allow access to data, information, or services disseminated by outside data sources and Client acknowledges that Impel and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of such third party data information or services and make no warranty concerning such information. CLIENT USES SUCH THIRD PARTY DATA, INFORMATION, OR SERVICES AT ITS OWN RISK.
11. INDEMNIFICATION.
11.1 By Impel. Impel, at its own expense, shall: (i) defend, or at its option settle, any claim, suit or proceeding brought by a third party against the Client and its affiliates and its and their licensors, suppliers, officers, directors, employees and agents alleging that the Services (other than Client Data) infringe an existing United States copyright or trademark; and (ii) pay any final and non-appealable judgment entered or settlement against Client thereon; provided, however, that Impel shall not be responsible for any compromise or settlement made without its prior consent. If a Service is or may become the subject of such a claim, Impel may, at its option: (1) modify or replace the affected parts so the Service becomes non-infringing or (2) terminate this Agreement and refund Client for any prepaid and unused fees. Impel shall have no obligation with respect to any infringement claim based upon (a) Client Data or (b) Client’s or its users’ combination, operation or use of the Services with non-Impel applications, information or services if the infringement claim would have been avoided had such combination, operation or use not occurred. THIS SECTION STATES THE ENTIRE LIABILITY OF IMPEL, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT INVOLVING THE SERVICES.
11.2 By Client. Client agrees to defend, hold harmless and indemnify Impel and its affiliates, and their respective employees, officers, directors, managers, stockholders, members, representatives and agents from and against any and all claims, causes of action, damages, demands, fines, losses, deficiencies, judgments, interest, awards, fines, costs, expenses, liabilities, and penalties of any kind (including reasonable attorney and expert fees) arising out of, based upon, resulting from or in connection with (a) the Client’s breach of this Agreement, (b) Client’s gross negligence, misconduct, or violation of Applicable Law; (c) Client’s misuse of the Services, or any component thereof, and (d) Client Data.
11.3 Process. Each party’s indemnification obligation under this Section 11 is conditional upon: (a) the indemnified party giving the indemnifying party prompt notice upon becoming aware of the claim (provided that failure to promptly notify shall not relieve the indemnifying party of its obligation to defend the claim unless such failure materially prejudices its ability to defend the claim); (b) the indemnified party giving the indemnifying party the right to solely control and direct the investigation, preparation, defense and settlement of the claim; and (c) the indemnified party reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in such defense and settlement. The indemnified party shall have the right, at its cost, to employ counsel of its choice to participate in the defense of such claim.
12. LIMITATION OF LIABILITY.
12.1 Limitation of Damages. To the extent permitted by Applicable Law and except as set forth below in Section 12.3, in no event will Impel be liable to Client or any third party for any indirect, incidental, special, consequential, punitive or exemplary damages (including damages for loss of profits, goodwill, use, revenue, or data, or cost of substitute services, or other economic loss, or otherwise), whether or not Impel has been advised of the possibility of such potential loss or damage.
12.2 Damages Cap. In no event will Impel’s liability to Client or any third party exceed the total amount actually paid by Client to Impel during the one (1) month period preceding such claim or action arising under the Activation Agreement under which Impel’s liability to Client arose.
12.3. Exceptions. Nothing contained in Section 12 shall limit Impel’s liability with respect to: (a) breach of Impel’s obligations hereunder relating to Client’s Confidential Information; and (b) amounts payable by Impel pursuant to its indemnification obligations under this Agreement.
13. GENERAL.
13.1 Assignment. This Agreement and all rights and obligations hereunder are not assignable or transferable by Client without the prior written consent of Impel, and any attempt to do so shall be void. This Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.2 Independent Contractors. Client and Impel are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
13.3 Notice. All notices and consents required or permitted under this Agreement must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid) or by overnight courier or by email with confirmation of receipt, in each case to the addresses listed on the first page of the Activation Agreement and will be effective upon receipt. Notices to Impel should be sent to the attention of its CFO. Each party may change its address for receipt of notices by giving notice of the new address to the other party.
13.4 Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible.
13.5 Waivers. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement. The waiver of any breach or violation of any term or provision of this Agreement shall not constitute a waiver of any subsequent breach or violation of this Agreement.
13.6 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim, in connection with this Agreement.
13.7 Remedies Cumulative. The enumeration herein of specific remedies shall not be exclusive of any other remedies unless otherwise expressly stated herein. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege.
13.8 Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter herein and supersedes all prior discussions, understandings and agreements, written or oral, with respect to its subject matter. Any terms on a purchase order, payment document, or other document submitted by Client shall be void and have no force or effect. The Activation Agreement may be executed in any number of counterparts, each of which is deemed an original but all of which constitute the same instrument. The Activation Agreement may be executed by the certified electronic signatures, or copies delivered by electronic mail in Adobe Portable Document Format or similar format, and any signature transmitted by such means for the purpose of executing the Activation Agreement is deemed an original signature for purposes of this Agreement.
13.9 Amendments. Except as otherwise set forth herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Impel. The terms in any Activation Agreement will not amend or modify these Terms and Conditions and are expressly rejected by Impel. Notwithstanding the foregoing, to the extent any change in Applicable Law requires any amendment to this Agreement, Impel may unilaterally make such amendment upon written notice to Client, in which case such amendment shall be effective thirty (30) days after such notice (or such shorter period as Impel may prescribe due to the applicable change in Applicable Law), and Client shall have the right to terminate this Agreement prior to the amendment taking effect if Client can demonstrate hardship due to such amendment.
13.10 Construction. The descriptive headings of the sections of this Agreement are inserted for convenience only and do not control or affect the meaning or construction of any section.
13.11 Interpretation. The word “including” and its grammatical variations shall be deemed to be followed by “without limitation”. Unless the context otherwise requires, the word “or” shall be deemed to mean “and/or”. “Will” shall be deemed to mean “shall”. “Such as”, “for example” and “e.g.,” shall each be deemed to mean “for example, but without limitation”. Unless the context otherwise requires, all references to “dollars”, “Dollars”, “$”, “United States dollars” or the like refer to the dollar that is the lawful currency of the United States of America.
