Terms of Service
BY SIGNING AN ORDER FORM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERNING YOUR USE OF THE COMPETITORPRO WEB SERVICE (THE “SERVICE”) PROVIDED BY AUTOMOTIVE VENTURES, LLC (“COMPETITORPRO”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
Welcome
CompetitorPro will provide you with use of the Service, via a web browser interface. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the CompetitorPro website incorporated by reference herein, including but not limited to CompetitorPro’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
CompetitorPro’s privacy and security policy may be viewed at http://CompetitorPro.com/privacy-policy. CompetitorPro reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a web-based application, CompetitorPro occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service.
2. License Grant & Restrictions
CompetitorPro hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes during the term of this agreement, subject to the terms and conditions of this Agreement. All rights not expressly granted to you in this Agreement are reserved by CompetitorPro and its licensors.
You may not access the Service if you are a direct competitor of CompetitorPro, except with CompetitorPro’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one organization or group, as identified on an Order Form (such as an automobile dealership or group of dealerships).
You may use the Service only for your internal business purposes and shall not: (i) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (ii) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws and regulations in connection with your use of the Service. You shall: (i) notify CompetitorPro immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to CompetitorPro immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another CompetitorPro user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
CompetitorPro does not own any data, information or material, if any, that you submit to the Service in the course of using the Service (“Customer Data”). You, and not CompetitorPro, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all such Customer Data, and CompetitorPro shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any such Customer Data. CompetitorPro reserves the right to withhold, remove and/or discard any such Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and CompetitorPro shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
CompetitorPro alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the CompetitorPro Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the CompetitorPro Technology or the Intellectual Property Rights owned by CompetitorPro. The CompetitorPro name, the CompetitorPro logo, and the product names associated with the Service are trademarks of CompetitorPro or third parties, and no right or license is granted to use them.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. CompetitorPro and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. CompetitorPro does not endorse any sites on the Internet that are linked through the Service. CompetitorPro provides these links to you only as a matter of convenience, and in no event shall CompetitorPro or its licensors be responsible for any content, products, or other materials on or available from such sites. CompetitorPro provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
Service features that interoperate with certain data providers depend on the continuing availability of their respective application programming interfaces (“API”) and programs for use with the Services. If any of these respective parties ceases to make its respective API or program available on reasonable terms for the Services, CompetitorPro may cease providing such Service features without entitling you to any refund, credit, or other compensation.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for the service ordered for the entire License Term, whether or not the service is actively used. CompetitorPro reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Billing and Renewal
CompetitorPro charges and collects in advance for use of the Service. If you pay by credit card, then CompetitorPro will automatically renew and bill your credit card each month on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current license fee in effect during the prior term, unless CompetitorPro has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. CompetitorPro’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on CompetitorPro’s income.
You agree to provide CompetitorPro with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, CompetitorPro reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing at billing (at) CompetitorPro.com within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to CompetitorPro herein, CompetitorPro reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for service during any period of suspension. If you or CompetitorPro initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that CompetitorPro may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
CompetitorPro reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that CompetitorPro has no obligation to retain Customer Data, if any, and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
10. Termination upon Expiration
This Agreement commences on the Effective Date. For all editions, the initial license term will be as otherwise mutually agreed upon in an Order Form. Upon the expiration of the initial term, this Agreement will automatically renew for successive renewal terms equal in duration to the initial term at CompetitorPro’s then current fees. Either party may terminate this Agreement or downgrade the service, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), CompetitorPro will make available to you a file of the Customer Data, if any, within 30 days of termination if you so request at the time of termination. You agree and acknowledge that CompetitorPro has no obligation to retain the Customer Data, if any, and may delete such Customer Data, more than 30 days after termination.
11. Termination for Cause
Any breach of your payment obligations or unauthorized use of the CompetitorPro Technology or Service will be deemed a material breach of this Agreement. CompetitorPro, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, CompetitorPro may terminate a free or trial account at any time in its sole discretion. You agree and acknowledge that CompetitorPro has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. CompetitorPro represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online CompetitorPro help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
13. Mutual Indemnification
You shall indemnify and hold CompetitorPro, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of any Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that CompetitorPro (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release CompetitorPro of all liability and such settlement does not affect CompetitorPro’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
CompetitorPro shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim which, if true, would constitute a violation by CompetitorPro of its representations or warranties; or (iii) a claim arising from breach of this Agreement by CompetitorPro; provided that you (a) promptly give written notice of the claim to CompetitorPro; (b) give CompetitorPro sole control of the defense and settlement of the claim (provided that CompetitorPro may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to CompetitorPro all available information and assistance; and (d) have not compromised or settled such claim. CompetitorPro shall have no indemnification obligation, and you shall indemnify CompetitorPro pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware, or business process(s).
14. Disclaimer of Warranties
COMPETITORPRO AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COMPETITORPRO AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPETITORPRO AND ITS LICENSORS.
15. Internet Delays
COMPETITORPRO’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPETITORPRO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
18. Local Laws
CompetitorPro and its licensors make no representation that the Service is appropriate or available for use locations other than North America. If you use the Service from outside North America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.
19. Notice
CompetitorPro may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in CompetitorPro’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in CompetitorPro’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to CompetitorPro (such notice shall be deemed given when received by CompetitorPro) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to CompetitorPro at the following address (whichever is appropriate): Automotive Ventures LLC, 3423 Piedmont Rd. NE, Atlanta, GA 30305 to the attention of: Chief Executive Officer.
20. Modification to Terms
CompetitorPro reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
21. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of CompetitorPro but may be assigned without your consent by CompetitorPro to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of CompetitorPro directly or indirectly owning or controlling 50% or more of you shall entitle CompetitorPro to terminate this Agreement for cause immediately upon written notice.
22. General
This Agreement shall be governed by Georgia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and CompetitorPro as a result of this agreement or use of the Service. The failure of CompetitorPro to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CompetitorPro in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and CompetitorPro and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
23. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these online terms of use, any Order Forms, whether written or submitted online, and any materials available on the CompetitorPro website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by CompetitorPro from time to time in its sole discretion; “Content” means the information and documents provided or made available to you in the course of using the Service; “Customer Data” means any data, information or material provided or submitted by you, if any, to the Service in the course of using the Service; “Effective Date” means the earlier of either the date this Agreement is accepted by signing an Order Form digitally or in writing, or the date you begin using the Service; “Initial Term” means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); “CompetitorPro” means collectively Automotive Ventures, LLC, a Georgia limited liability company; “CompetitorPro Technology” means all of CompetitorPro’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by CompetitorPro in providing the Service; “Service(s)” means CompetitorPro’s web-based competition analysis services identified during the ordering process, developed, operated, and maintained by CompetitorPro, accessible via http://CompetitorPro.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by CompetitorPro, to which you are being granted access under this Agreement, including the CompetitorPro Technology and the Content; “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by CompetitorPro at your request).
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to support@CompetitorPro.com.