Terms & Conditions
BLiNK AI DEALER AGREEMENT
These Terms and Conditions are incorporated by reference into all Order Forms entered into between BLiNK AI, Inc. (“BLiNK AI”) and the participating dealer (“Dealer”). These Terms and Conditions and the Order Form executed by the parties constitute a binding agreement between Dealer and BLiNK AI and are referred to collectively as the “Agreement”.
BACKGROUND
BLiNK AI offers the BLiNK AI Communication Platform (the “BLiNK AI Service“) which, when an automotive dealer integrates the BLiNK AI Service with its dealer management, customer management, and other networks and systems, allows the dealer to more efficiently and effectively communicate with its customers, including to schedule vehicle maintenance services.
Dealer wishes to use the BLiNK AI Service and BLiNK AI wishes to license use of the BLiNK AI Service to Dealer, in each case, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises contained herein and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the Parties hereby agree to the terms set forth herein.
AGREEMENT
1. Definitions
All capitalized terms used and not otherwise defined in this Section 1 shall have the respective meanings ascribed to such terms elsewhere in this Agreement.
“Affiliate” means, with respect to a party, any party that controls, is controlled by, or is under common control with such party, where “control” means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of an entity, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, at least fifty percent (50%) of the voting stock, shares, or interests of such entity. A party that otherwise qualifies under this definition shall be included within the meaning of “Affiliate” even though it qualifies after the Effective Date.
“BLiNK AI Content” means Content provided by BLiNK AI hereunder, including the BLiNK AI Service Content.
“BLiNK AI Dealer Portal” means BLiNK AI’s portal through which dealers can access Conversations, communicate with BLiNK AI, and view presence, usage, statistical, and analytic data regarding Dealer’s and its Shoppers’ activities occurring through the BLiNK AI Service.
“BLiNK AI Integration Code” means any HTML tag, JavaScript, API, or other software code for integrating a Dealer System with the BLiNK AI Service provided by BLiNK AI to Dealer.
“BLiNK AI Service” means the BLiNK AI Communication Platform which, when an automotive dealer integrates the BLiNK AI Service with Dealer Systems, allows the dealer to more efficiently and effectively communicate with its customers, including to schedule vehicle maintenance services, including: (a) the BLiNK AI Integration Codes and the BLiNK AI Content; (b) the BLiNK AI Dealer Portal; and (c) all revision, upgrade, new release, error-correction, bug fix, change, enhancement, amendment, or modification to any of the foregoing developed by BLiNK AI from time to time.
“BLiNK AI Documentation” means the standard published technical materials, including in electronic form, authorized and distributed by BLiNK AI to its clients that describe the functionality of the BLiNK AI Service, as updated by BLiNK from time to time.
“BLiNK AI IP” means, collectively: (a) the BLiNK AI Service, the BLiNK AI Documentation; (b) the BLiNK AI Marks; (c) all developments, inventions, and work product created in connection with the BLiNK AI Services; (d) Usage Data; (e) the BLiNK AI Confidential Information; (f) all feedback from Dealer, Shoppers, and Authorized Users regarding the BLiNK AI Service; (g) all revision, upgrade, new release, error-correction, bug fix, change, enhancement, amendment, or modification to any of the foregoing to any of the items mentioned in clauses (a) through (f); and (h) all Intellectual Property Rights in all of the foregoing.
“Content” means graphics, software, photos, text, graphics, audio, video, data, information, and other content, in any media.
“Conversation” means the Content contained in a communication between Dealer and a Shopper through the BLiNK AI Service.
“Law” means all federal, state, and local statutes and binding ordinances, codes, orders, rules, supervisory requirements, regulatory examinations, conventions, regulations, and binding regulatory interpretations, opinions, requirements, and guidance of any governmental agency, including all Privacy Laws and all other statutes and regulations that apply to communications between Dealer and consumers or BLiNK AI and consumers on Dealer’s behalf, including the Telephone Consumer Protection Act (“TCPA”), the FTC Act, the Telemarketing Sales Rule and Do Not Call List, Children’s Online Privacy Protections Act (COPPA), and CAN-SPAM.
“Personal Information” means: any information defined as “personally identifiable information”, “personal information”, “personal data” or similar terms, as such terms are defined under Privacy Laws.
“Privacy Laws” means all data protection and privacy Laws applicable to Dealer or BLiNK AI in its role in the Processing of Personal Information under the Agreement.
“Process” (and variations thereof) means to perform any operation or set of operations upon Shopper Data, whether manually or by automatic means, including but not limited to collection, recording, sorting, structuring, accessing, storage, adaptation or alteration, retrieval, consultation, use, transfer, disclosure, or dissemination.
“Shopper” means an individual who is a new or existing customer of Dealer.
“Shopper Data” means, collectively, any and all Content, including Personal Information, related to Shoppers or their vehicles that is uploaded, submitted, posted, or otherwise provided or made available to BLiNK AI by Shoppers or Dealer or on Dealer’s behalf, whether through the Dealer Systems, the BLiNK AI Service or otherwise in connection with the performance of this Agreement.
“Systems” means, collectively, the software, firmware, hardware, computer systems, devices, networks, facilities, and other infrastructure components owned, controlled, or operated by BLiNK AI or Dealer, as applicable, or on such Party’s behalf, in relation to this Agreement.
2. BLiNK AI Service
2.1 License. Subject to Dealer’s compliance with the terms and conditions of this Agreement, BLiNK AI hereby grants Dealer a limited, nonexclusive, nontransferable, revokable right and license, without right of sublicense, during the Term, to: (a) implement the BLiNK AI Integration Codes on each dealer website identified on the Order Form (each, a “Dealer Website”) and display the associated BLiNK AI Content on the applicable pages of such Dealer Website; (b) use the BLiNK AI Service to communicate with Shoppers regarding their vehicles; (c) access and use the BLiNK AI Dealer Portal to view Conversations and the presence, usage, statistical and analytic data that BLiNK AI develops with respect to the Dealer’s use of the BLiNK AI Service (the “BLiNK AI Service Content”); and (d) use and reproduce Shopper Data Processed by the BLiNK AI Service and made available to Dealer under this Agreement solely for the purpose of communicating with Shoppers regarding their vehicles and responding to their requests.
2.2 BLiNK Obligations. BLiNK AI shall: (a) provide Dealer with the BLiNK AI Service components identified on the Order Form; (b) make accessible to Dealer through the BLiNK AI Dealer Portal, Conversations and the BLiNK AI Service Content that BLiNK AI makes generally available to its other customers; (c) BLiNK AI shall retain and store Conversations for a reasonable period of time, as determined by BLiNK AI, provided that, BLiNK AI has no obligation to store any Conversation for a period of more than thirty (30) days; (d) provide Dealer with BLiNK AI’s standard technical support for the BLiNK AI Service via telephone and e-mail; and (e) program the BLiNK AI Service to respond, on behalf of Dealer, to Conversations initiated by Shoppers pursuant to the parameters provided by Dealer and include a link to Dealer’s Privacy Policy on certain Shopper-facing pages of the BLiNK AI Service, as instructed by Dealer.
2.3 Use of Dealer-Related Data and Shopper Data. Dealer acknowledges and agrees that BLiNK AI may: (a) share transcripts, recordings, and other copies of Conversations with the Shopper with whom Dealer had those Conversations; (b) freely use all navigational data (including metadata), including statistics and analyses, collected, generated or derived by BLiNK AI or on its behalf that solely relates to the manner in which Dealer, Shoppers, Authorized Users, or others access, display or use the BLiNK AI Service, including statistics and analyses thereof (“Usage Data”); (c) create, use, disclose, and publish Aggregated Data in order to provide the BLiNK AI Service, for BLiNK AI’s business purposes (including fraud detection and prevention), to improve the BLiNK AI Service, and for account maintenance (including customer service and technical support). BLiNK AI shall not re-identify or attempt to re-identify any Aggregated Data or link such data to the individual(s) to which it pertains. “Aggregated Data” means information based on or derived from data related to Dealer, including BLiNK AI Service Content and Usage Data, or from Shopper Information that: (i) combines information about multiple individuals or dealers; (ii) does not specifically identify any individual or dealer or any attribute thereof; and (c) has been transformed such that it cannot reasonably be used to identify any individual or dealer.
2.4 Changes to BLiNK AI Service. BLiNK AI may, in its sole discretion, make changes to the BLiNK AI Service or the BLiNK AI Documentation from time to time, including adding or subtracting requirements, features, or functionality. Dealer agrees and acknowledges that if BLiNK AI modifies the BLiNK AI Service, such changes may require Dealer to make changes to the Dealer Websites or other portions of the Dealer Systems in order to continue to use the BLiNK AI Service.
2.5 Suspension of Services. BLiNK AI may suspend Dealer’s access to the BLiNK AI Service or any portion thereof at any time, without penalty or liability, if: (a) BLiNK AI reasonably believes that Dealer or an Authorized User has breached any provision of this Agreement or failed to comply with applicable Law; (b) Dealer fails to pay any amounts when due; (c) BLiNK AI reasonably believes Dealer’s or an Authorized User’s continued access to the BLiNK AI Service may damage or otherwise interfere with the BLiNK AI Service or BLiNK AI’s ability to provide it to its other customers; or (d) BLiNK AI reasonably suspects or believes Dealer has used or may use the BLiNK AI Service to engage in fraud or other conduct in violation of applicable Law. BLiNK AI shall use commercially reasonable efforts to notify Dealer in advance of any suspension of the BLiNK AI Service pursuant to this Section.
3. Dealer Obligations
3.1 Access to Dealer Systems. Dealer shall provide BLiNK AI access to its dealership management System (DMS), service scheduling System, customer relationship management System (CRM), or other similar Systems as necessary or useful to provide the BLiNK AI Service (collectively, the “Dealer Systems”). Dealer acknowledges and agrees that as part of this access, data, including Shopper Data, may be pulled from the Dealer Systems, pushed into the Dealer Systems, or both.
3.2 Licenses. Dealer hereby grants BLiNK AI a nonexclusive, worldwide, right and license, during the Term, to (a) access the Dealer Systems; (b) Process Shopper Data contained in the Dealer Systems or otherwise provided by or on behalf of Dealer or Shoppers to BLiNK AI; (c) use, reproduce, display, perform, modify, and create derivative works of the Dealer Content, (d) reproduce and display the Dealer Marks on the BLiNK AI Service in connection with the services provided to Dealer hereunder, including the pop-up browser windows used for Connections and the Dealer Portal and on BLiNK AI’s website and in its marketing materials and customer lists. BLiNK AI shall exercise the foregoing rights solely for the purpose of performing the services to be provided by, and exercising the rights granted to, BLiNK AI hereunder.
3.3 System of Record. Dealer acknowledges and agrees that BLiNK AI shall use Dealer’s DMS as the system of record for Do Not Call and opt-in/opt-out information.
3.4 Dealer’s Obligations. Dealer shall: (a) provide BLiNK AI with Dealer’s parameters for all potential Shopper interactions through the BLiNK AI Service; (b) provide an active link to Dealer’s Privacy Policy; (c) replace the current versions of the BLiNK AI Integration Codes with any updated BLiNK AI Integration Codes promptly upon receipt from BLiNK AI; (d) follow the recommendations set out in the Mobile Marketing Association’s US Consumer Best Practices Guide for businesses utilizing SMS marketing, including those dealing with “opt-in” and “opt-out”; and (e) comply with the BLiNK AI Documentation; and (f) provide all connectivity and Systems necessary for Dealer to access or use the BLiNK AI Service and pay all charges related thereto.
3.5 Restrictions. Except as expressly authorized in this Agreement and by applicable Law, Dealer shall not, and shall not instruct, permit, allow, or induce any party, directly or indirectly, to: (a) access, use, sell, lease, sublicense, copy, market, or distribute the BLiNK AI Service or any component thereof except as explicitly permitted hereunder; (b) modify any BLiNK AI Integration Code except to fill in the blank fields explicitly defined in the BLiNK AI Documentation as “variables to be filled in by Dealer”, otherwise modify port, translate, or create derivative works of the BLiNK AI Service or any component thereof, or reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the BLiNK AI Service or any portion thereof; (c) circumvent or modify any security mechanism used by BLiNK AI or gain unauthorized access to or use of BLiNK AI’s services or Systems or damage, disrupt, or impede the operation of BLiNK AI’s services or Systems; (d) use the BLiNK AI Service for the benefit of a BLiNK AI competitor or to compete with BLiNK AI; (e) transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature; (f) modify, copy, download, publish, transmit, distribute, perform, create derivative works of, or in any way exploit, any BLiNK AI IP, in whole or in part; (g) frame any BLiNK AI Content or incorporate it into another website or service; (h) use the BLiNK AI Service for any purpose that is unlawful or prohibited by this Agreement; (i) transmit any information that is unlawful, tortious, harmful, inappropriate, profane, indecent, unlawful, immoral, or violates the rights of any party; or (j) remove, alter, cover, or obfuscate any Intellectual Property Rights notices or other proprietary notices, labels, or marks on or in the BLiNK AI Integration Code or BLiNK AI Content or that appear when the BLiNK AI Integration Code is activated.
3.6 Relationship with Customers. Dealer acknowledges and agrees that BLiNK AI is providing services on Dealer’s behalf and that Dealer, not BLiNK AI, has the relationship with Shoppers and is solely responsible for the management of that relationship and interactions with Shoppers, including the provision of services, sales, collections, customer support, handling customer complaints, warranty claims, and customer service.
3.7 Authorized Users. Only Authorized Users may access the BLiNK AI Service. Dealer shall assume all responsibility and liability with respect to the access and use of the BLiNK AI Service through Dealer’s Systems or the credentials of Authorized Users, other than liability arising from a breach by BLiNK AI of this Agreement. Dealer shall institute contractual, technological, or functional procedures and processes as necessary to monitor use of authentication credentials and to protect and require Authorized Users to protect their authentication credentials. “Authorized User” means an individual employee or independent contractor of Dealer or its subcontractor authorized by Dealer to have access to the BLiNK AI Service.
4. Fees and Payment Terms
4.1 Dealer Setup Fee. Dealer shall pay the one-time setup fee (the “Dealer Setup Fee”) for each Dealer Website.
4.2 Subscription Fee. During the Term, Dealer shall pay the monthly subscription fee (the “Subscription Fee”) set forth in the Order Form. The first Subscription Fee is due and payable on the date that the BLiNK AI Service is first live for Dealer in a production environment. Thereafter, the Subscription Fee is due in advance for each month during the Term within thirty (30) days after the date of BLiNK AI’s invoice. BLiNK AI reserves the right to change the Subscription Fee at any time by giving Dealer at least thirty (30) days’ written notice. Other than specifically provided in this Agreement, all amounts paid hereunder are nonrefundable.
4.3 Taxes. The fees stated on the Order Form do not include any taxes, duties, or similar governmental assessments of any nature, including, value-added, sales, use, or withholding taxes. Dealer is solely responsible for paying all taxes associated with the transactions contemplated hereunder, excluding taxes on BLiNK AI’s net income. If BLiNK AI has the legal obligation to pay or collect taxes for which Dealer is responsible under this Section 4.3, BLiNK AI, will invoice Dealer and Dealer will pay that amount to BLiNK AI unless Dealer provides to BLiNK AI a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Late Payment. Any amounts due under this Agreement from Dealer that are not paid when due shall bear interest from the due date at a monthly rate equal to the lower of one point five percent (1.5%) or the maximum rate allowed by applicable Law, unless the payment of such funds is subject to a good faith dispute, in which case, no interest will accrue on such fees until the dispute is finally resolved and the funds are determined to be due and payable.
5. Term
5.1 Term. (a) The term of this Agreement commences on the date the last Party to sign the first Order Form signs the first Order Form hereunder and continues until all Order Forms hereunder have expired or been terminated (the “Term”). (b) The initial term for the services described in each Order Form shall commence on the date of such Order Form and continue for a period of three (3) months after the date the BLiNK AI Service is first live for Dealer in a production environment (the “Initial Subscription Term”). Thereafter, each Order Form will automatically renew for successive thirty (30) day terms (each a “Renewal Term” and, together with the Initial Term, the “Subscription Term”), unless either Party notifies the other Party of its decision not to renew such Order Form at least thirty (30) days prior to the end of the then current Subscription Term.
5.2 Termination by BLiNK AI. BLiNK AI may terminate this Agreement, without penalty or liability, upon notice if: (a) Dealer or any of its Representatives breaches Section 3.5 (Restrictions), Section 7.2 (Consents and Compliance with Law), or Section 9 (Confidentiality) or (b) BLiNK AI reasonably believes it shall be in violation of applicable Law if it continues to provide the BLiNK AI Service to Dealer.
5.3 Termination by Either Party. A Party may immediately terminate this Agreement upon written notice to the other Party if the other Party: (a) materially breaches this Agreement and fails to cure such material breach within ten (10) business days after notice (in reasonable detail) of the breach is given by the non-breaching parties to the breaching party or (b) files or consents to the filing of any petition in bankruptcy or for other relief under any bankruptcy law or law for the relief of debtors, or is adjudicated insolvent, or is dissolved or liquidated, or makes any assignment to or for the benefit of all, or substantially all, of its creditors, or a receiver or similar person is appointed relating to such Party’s assets, or it is unable to pay its debts as they mature.
5.4 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Dealer’s license to use the BLiNK AI Service and BLiNK AI IP shall immediately terminate; (b) Dealer shall immediately cease all access to and use of the BLiNK AI Service and shall remove the BLiNK AI Integration Code and all BLiNK AI Content from each Dealer Website; and (c) Sections 8 through 17 shall survive, together with and any other provision of this Agreement that, in accordance with its terms, is intended to survive.
6. Ownership
6.1 BLiNK AI IP. As between the Parties, and except for the rights specifically and expressly granted to Dealer under this Agreement, BLiNK AI owns and shall retain all right, title, and interest (including all Intellectual Property Rights and other proprietary rights) in and to the BLiNK AI IP and any and all developments, inventions, and work product created in connection with the BLiNK AI Service hereunder, notwithstanding that Dealer may contribute to the cost or design of updates, translations, customized versions, other versions, or derivative works thereof. To the extent that Dealer may have or later obtains any Intellectual Property Rights or other rights or interests in the BLiNK AI IP, Dealer disclaims such rights and interests, and hereby irrevocably assigns and transfers such rights and interests exclusively to BLiNK AI. Dealer hereby grants to BLiNK AI a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the BLiNK AI IP any suggestions, enhancement requests, recommendations, or other feedback provided by Dealer or its personnel relating to the BLiNK AI Services or BLiNK AI IP. Dealer shall, upon BLiNK AI’s request and at BLiNK AI’s cost, provide reasonable assistance to BLiNK AI, including the execution of appropriate documents, in order for BLiNK AI to effect such assignment and transfer of such rights and interests to BLiNK AI.
6.2 Content. Dealer acknowledges that BLiNK AI owns the Conversations and may share them with the applicable Shopper. Dealer acknowledges that the pop-up screens or windows associated with the BLiNK AI Service contain Content protected by Intellectual Property Rights. All trademarks appearing on any pop-up screen or window associated with the BLiNK AI Service are trademarks of their respective owners. BLiNK AI, the BLiNK AI logo and the BLiNK AI icon (the “BLiNK AI Marks”) are trade names and the registered trademarks and service marks of BLiNK AI. All proprietary rights and goodwill associated with the use of the BLiNK AI Marks shall inure to the benefit of BLiNK AI. BLiNK AI’s commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may have additional proprietary rights in Content that is made available on screens or pop-up windows associated with the BLiNK AI Service. Dealer does not obtain any ownership interest in such Content.
6.3 Dealer Materials. (a) As between the Parties, and except for the rights specifically and expressly granted to BLiNK AI under this Agreement, and subject to BLiNK AI’s ownership of the BLiNK AI IP, Dealer (for itself and its licensors) owns and retains all right, title and interest, including all Intellectual Property Rights, in and to: (a) the Dealer Websites; (b) Dealer’s trademarks, service marks and corporate and brand identification and indicia used by Dealer in connection with the Dealer Websites, including word marks, logos and other picture marks, phrases, jingles, composite marks, corporate commercial and institutional images, product designations and identifications, whether registered or not) (collectively, the Dealer Marks”); and (c) the Shopper Data and any Content, excluding Conversations, developed by Dealer (collectively, the “Dealer Materials”). (b) Except as expressly stated in Section 3.2, BLiNK AI may not make any use of the Dealer Marks. Upon Dealer’s request, BLiNK AI shall provide appropriate attribution of the use of a Dealer Mark or immediately cease using such Dealer Mark. In connection with the licenses granted in this Section 3.2, Dealer may establish such quality standards and additional terms concerning the use of the Dealer Marks as Dealer deems necessary to reasonably protect the Dealer Marks. All proprietary rights and goodwill associated with the use of the Dealer Marks shall inure to the benefit of Dealer. BLiNK AI does not obtain any ownership interest in the Dealer Materials.
7. Use of Data and Data Security
7.1 Cybersecurity. Each Party will implement adequate administrative, procedural, technical, and physical safeguards designed to: (a) provide for the security and confidentiality of Personal Information Processed in connection with this Agreement; (b) protect against any anticipated threats or hazards to the security or integrity of such Personal Information and (c) protect against unauthorized access to or use of such Personal Information which could result in substantial harm to a Shopper. Dealer shall be responsible for all Systems that it integrates with the BLiNK AI Service. Dealer shall use industry best practices to prevent unauthorized access to the BLiNK AI Service through the Dealer Systems. BLiNK AI shall: (i) taking into account the nature of its Processing of Shopper Personal Information and the information available to it, promptly notify Dealer on discovery of any Security Incident; (ii) provide timely information relating to such Security Incident as it becomes known or as Dealer reasonably requests; (iii) promptly take reasonable steps to contain, investigate, and mitigate such Security Incident. Except otherwise required by applicable Law, BLiNK AI will not inform any Shoppers or other third parties of any Security Incident without first obtaining Dealer’s prior written consent. “Security Incident” means any unauthorized or unlawful breach of security of BLiNK AI’s Systems that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Shopper Personal Information which in BLiNK AI’s possession or control.
7.2 Consents and Compliance with Law. Dealer represents, warrants, and covenants that Dealer is knowledgeable of, and familiar with, all Law and industry standards applicable to Dealer’s business, the services to be provided by BLiNK AI hereunder on Dealer’s behalf, and the activities contemplated hereunder, and will comply with Law in its use of the BLiNK AI Service and its performance of its obligations hereunder, including by providing all any and all notices, obtaining any and all consents, and complying with any and all procedures and limitations as may be required by Privacy Laws, the TCPA, the FTC Act, the Telemarketing Sales Rule and Do Not Call List, COPPA, or CAN-SPAM. Without limitation of the foregoing: (a) prior to making Shopper Data available to BLiNK AI, Dealer will obtain from the applicable Shopper unambiguous, explicit written or electronic Consent that is legally sufficient to comply with applicable Law, granting permission for BLiNK AI to Process such Shopper’s Shopper Data as contemplated by this Agreement (provided that, the Consent is not required to mention BLiNK AI or the BLiNK AI Service by name). Subject to Dealer’s compliance with the foregoing, Dealer shall determine in its sole discretion the form and manner in which it obtains Consents from Shoppers. “Consent” means a written or electronic communication from a Shopper to a Dealer granting permission for BLiNK AI to Process the Shopper Information as described in this Agreement; (b) Dealer shall retain proof of each Consent, including the date of Consent, for as long as is required by applicable Law; and (c) Dealer has in place and will maintain and comply with a privacy policy that complies with applicable Privacy Laws, fully and accurately discloses the data collection, use and disclosure practices in connection with Dealer’s use of the BLiNK AI Service and the services to be performed by BLiNK AI hereunder, and be clearly and conspicuously available to all Shoppers.
BLINK AI HAS NO RESPONSIBILITY FOR DEALER’S COMPLIANCE WITH LAW. DEALER ACKNOWLEDGES THAT THE BLINK AI SERVICE INCLUDES OPTIONAL FEATURES THAT ALLOW DEALER TO REQUEST AUTOMATIC E-MAILS FROM THE BLINK AI SERVICE (CONVEYING CONVERSATIONS AND/OR FORM-BASED INFO PROVIDED BY A SHOPPER) THAT WILL BE SENT UNENCRYPTED AND DEALER ASSUMES ALL RESPONSIBILITY FOR ANY DAMAGES BLINK AI OR A SHOPPER MAY SUFFER AS THE RESULT OF ANY UNAUTHORIZED DISCLOSURE OF THEREOF RESULTING FROM ANY SUCH E-MAIL COMMUNICATION.
8. Representations and Warranties; Disclaimers
8.1 By Both Parties. Each Party represents, warrants, and covenants to the other Party that: (a) it has the right to enter into this Agreement and to grant all rights and licenses granted under this Agreement and (b) upon execution and delivery of this Agreement by it, this Agreement will be the legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally.
8.2 By Dealer. Dealer represents, warrants, and covenants to BLiNK AI that the Dealer Materials do not and will not violate any third-party rights.
8.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN SECTION 8.1, BLINK AI MAKES NO REPRESENTATIONS OR WARRANTIES AND EXPLICITLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF COMPLIANCE AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY/SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RELATING TO THE BLINK AI SERVICE, THE BLINK AI IP, THE RESULTS OR REPORTS PROVIDED HEREUNDER, OR ANY THIRD-PARTY PRODUCTS OR SERVICES FURNISHED OR OTHERWISE PROVIDED FOR HEREUNDER. WITHOUT LIMITATION OF THE FOREGOING, (A) THE BLINK AI CONTENT, CONVERSATIONS, AND SHOPPER DATA COLLECTED BY THE BLINK AI SERVICE ARE PROVIDED AS IS” AND “AS AVAILABLE”; (B) BLINK AI DOES NOT WARRANT THAT THE BLINK AI SERVICE OR BLINK AI CONTENT, CONVERSATIONS, OR SHOPPER DATA COLLECTED BY THE BLINK AI SERVICE OR THE USE THEREOF SHALL BE TIMELY, SECURE, ERROR-FREE, FREE FROM MALWARE, BE PROVIDED (OR BE AVAILABLE) WITHOUT INTERRUPTION, OR MEET DEALER’S BUSINESS OR OPERATIONAL PURPOSE; (C) BLINK AI DOES NOT GUARANTEE OR WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS, INTEGRITY, VALIDITY, CURRENTNESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY STATISTICAL AND ANALYTICAL DATA INCLUDED IN THE BLINK AI SERVICE CONTENT OR THAT ERRORS IN ANY BLINK AI CONTENT, CONVERSATIONS, OR SHOPPER DATA WILL BE CORRECTED; AND (D) BLINK AI EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE BLINK AI SERVICE SHALL FUNCTION TO MEET DEALER’S REQUIREMENTS OR CANNOT BE HACKED, TAMPERED WITH, OR MALICIOUSLY ACCESSED BY THIRD PARTIES. DEALER ASSUMES ALL RISKS ASSOCIATED WITH ITS USE OF OR INABILITY TO USE THE BLINK AI SERVICE AND BLINK AI IP. IT IS DEALER’S SOLE RESPONSIBILITY TO DETERMINE THE SUITABILITY AND ADEQUACY OF THE BLINK AI SERVICE AND BLINK AI IP.
9. Confidentiality
9.1 Definition. “Confidential Information” means information disclosed hereunder by or on behalf of a Party (the “Discloser”), whether in oral, written, visual, electronic, or other form, to the other Party (the “Recipient”) or its Personnel or which is acquired by Recipient or its Personnel in its performance of this Agreement that: (a) relates to Discloser or its Affiliates; (b) is not generally known to the public; and (c) at the time of disclosure, is identified as, or would reasonably be understood by Recipient to be, proprietary or confidential. “Confidential Information” includes: (i) business plans, strategies, forecasts, projects, and analyses; (ii) financial information and fee structures; (iii) business processes, methods, and models; (iv) employee, customer, dealer, business partner, and supplier information; (v) System designs, architectures, structure, and protocols; (f) product and service specifications; and (g) sales and marketing information. Without limitation of the foregoing, Confidential Information of BLiNK AI includes the BLiNK AI Service and BLiNK AI Documentation and all information relating to any of the foregoing, including all reviews, assessments, reports, remediation plans, and other information developed or disclosed by either Party or on its behalf, and the terms and conditions of this Agreement are the Confidential Information of both Parties. Notwithstanding the foregoing, Recipient’s obligations under this Section 9 shall not apply to information or materials to the extent that Recipient can prove by written documentation that such information or materials: (1) is or has become publicly known (other than through unauthorized disclosure); (2) was disclosed to it without obligation of confidentiality from a third party who has the right to disclose such information or materials without restriction; or (3) is independently developed by Recipient without any use of Discloser’s Confidential Information.
9.2 Restrictions on Use and Disclosure. Recipient shall use Discloser’s Confidential Information only in connection with Recipient’s performance of its duties and obligations and exercise of its rights under this Agreement and for no other purpose whatsoever. Recipient shall restrict disclosure of Discloser’s Confidential Information to those of its Representatives who have a need to know such Confidential Information for the purposes of this Agreement and who are bound to Recipient to protect the confidentiality of the information and materials in a manner substantially equivalent to that required of Recipient. Except as expressly set forth in this Section 9, Recipient shall not (a) sell, assign, lease, disclose, dispose, duplicate, publish, release, transfer, or otherwise make available any of Discloser’s Confidential Information in any form to, or for the use or benefit of, any other party or (b) possess or assert, or permit to be possessed or asserted any lien or similar right against or to the Discloser’s Confidential Information. Recipient shall safeguard the confidentiality of Discloser’s Confidential Information using the same standard it employs to safeguard its own confidential information of like nature, but in no event less than a commercially reasonable standard of care. Recipient shall promptly report to Discloser any unauthorized use or disclosure of Discloser’s Confidential Information as soon as it becomes aware of such use or disclosure. “Representatives” means a Party’s officers, directors, employees, consultants, attorneys, accountants, agents, subcontractors (and their employees) and other representatives.
9.3 Legally Required Disclosure. Recipient shall not be deemed to have violated this Section 6 if it discloses Discloser’s Confidential Information in response to a bona fide subpoena or other lawful process issued by a court or agency of competent jurisdiction; provided that, to the extent permitted by Law, Recipient provides Discloser with prior notice of its intention to make such disclosure and affords Discloser a reasonable opportunity (under the circumstances of any subpoena or other request made upon Discloser) to seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Section 9.3. If Discloser is not successful in obtaining a protective order or other appropriate remedy and Recipient is, in the opinion of its counsel, compelled to disclose such Confidential Information, or if Discloser waives compliance with the provisions of this Section 9.3 in writing, Recipient may disclose, without liability hereunder, such Confidential Information in accordance with, but solely to the extent necessary to comply with, the bona fide subpoena or other lawful process issued by a court or agency of competent jurisdiction. Any information disclosed pursuant to this Section 9.3 shall remain Confidential Information for all other purposes.
9.4 Return of Confidential Information. Promptly upon the expiration or termination of this Agreement, or at such earlier time as Discloser requests, Recipient shall return to Discloser or its designee, or at Discloser’s request, securely destroy or render unreadable or undecipherable, Discloser’s Confidential Information. Notwithstanding the foregoing, Recipient may retain copies of written or printed Confidential Information of Discloser for archival purposes or to exercise its rights hereunder and to the extent required by Law, provided that, any such retained Confidential Information shall continue to be subject to the obligations of confidentiality and limited use hereunder.
9.5 Term of Confidentiality. The covenants and agreements contained in this Section 9 with respect to Confidential Information deemed a trade secret under applicable Law continue until the information ceases to be a trade secret under applicable Law. The obligations with respect to all other Confidential Information continues for a period of three (3) years after the expiration or termination of this Agreement.
10. Indemnity
10.1 Indemnification by Dealer. Dealer shall indemnify, defend, and hold BLiNK AI and its Affiliates and their respective directors, officers, employees, and agents harmless from and against any and all losses, liabilities, damages, and related costs and expenses, including reasonable legal fees and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) arising from any claims, demands, proceedings, actions, or suits of any kind brought by a third party (“Claims”) to the extent due to or arising from or related to: (a) BLiNK AI’s use of the Dealer Materials or Shopper Data in accordance with this Agreement, including any claim of infringement, misappropriation, or violation of a third party’s Intellectual Property Rights, privacy rights, or other proprietary rights; (b) BLiNK AI’s compliance with Dealer’s instructions regarding the programming of the BLiNK AI Service components for Dealer; (c) any Content Dealer submits, posts, transmits, or makes available through the BLiNK AI Service; (d) Dealer’s use of any Shopper Data; (e) any aspect of any Dealer System or any Third Party Service Offering that Dealer instructs BLiNK AI to integrate with the BLiNK AI Service; (f) any breach by Dealer or any of its Affiliates or any of their respective Representatives of any warranty, representation, covenant, or agreement made by Dealer in this Agreement; (g) the fraud, negligence, or intentional or willful misconduct of Dealer or any of its Affiliates or any of their respective Representatives; or (h) any failure or alleged failure by Dealer or any of its Affiliates or any of their respective Representatives to comply with the TCPA, the FTC Act, the Telemarketing Sales Rule and Do Not Call List, COPPA, or CAN-SPAM.
10.2 Indemnification by BLiNK AI. BLiNK AI shall indemnify, defend, and hold Dealer and its Affiliates and their respective directors, officers, employees and agents harmless from and against any and all Losses arising from any Claims to the extent due to or arising from (a) the BLiNK AI Service’s infringement, misappropriation, or violation of United States Intellectual Property Rights of any third party when used in accordance with this Agreement or (b) BLiNK AI’s fraud, gross negligence, or willful misconduct. If, in the opinion of BLiNK AI, any portion of the BLiNK AI Service is likely to or does become the subject of a Claim of infringement, misappropriation, or violation of a third party’s Intellectual Property Rights, BLiNK AI shall have the right at its sole option and expense to: (i) modify the BLiNK AI Service to no longer be subject to any such Claim; (ii) obtain for Dealer a right to continue using the BLiNK AI Service at no additional charge to Dealer; or (iii) if neither (i) nor (ii) are reasonably practicable, terminate this Agreement or the applicable Order Form on notice; provided however, that BLiNK AI shall have no indemnification obligations with respect to any Loss or Claim due to, arising from, or based upon (a) any aspect of any Dealer Materials or Dealer System, including any Security Breach with respect thereto; (b) any modification of the BLiNK AI Service by anyone other than BLiNK AI; (c) (ii) the incorporation into the BLiNK AI Content of any information provided by or requested by Dealer; (d) the combination, operation, or use of the BLiNK AI Service or any portion thereof with any Dealer System or System of any third party where such combination is the cause of such infringement; (e) the use of a version of the BLiNK AI Service or any portion thereof other than the then-current version; (f) any breach by Dealer or any of its Affiliates or any of their respective Representatives of any warranty, representation, covenant or agreement made by Dealer in this Agreement; or (g) the fraud, gross negligence, or willful misconduct of Dealer or any of its Affiliates or any of their respective Representatives. DEALER AGREES THAT THE REMEDIES SET FORTH IN THIS SECTION 10.2 ARE DEALER’S SOLE AND EXCLUSIVE REMEDIES, AND BLINK AI’S SOLE OBLIGATIONS, IN THE EVENT OF ANY CLAIM OF INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS.
10.3 Process. The Party seeking indemnification under this Section 10 (the “Indemnified Party”) must give prompt written notice to the other Party (the “Indemnifying Party”) of the Claim against which it seeks to be indemnified. The failure by an Indemnified Party to give such notice does not relieve the Indemnifying Party of its obligations under this Section 10, except to the extent that such failure results in the failure of actual notice and the Indemnifying Party is damaged as a result of the failure to give notice. The Indemnified Party shall allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and shall provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the Claim. The Indemnified Party has the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such counsel are at the expense of the Indemnified Party unless: (a) the employment of counsel by the Indemnified Party has been authorized by the Indemnifying Party; (b) the Indemnified Party has been advised by its counsel in writing that there is a conflict of interest between the Indemnifying Party and the Indemnified Party in the conduct of the defense of the action (in which case the Indemnifying Party does not have the right to direct the defense of the action on behalf of the Indemnified Party); or (c) the Indemnifying Party has not in fact employed counsel to assume the defense of the action within a reasonable time following receipt of the notice given pursuant to this Section 10, in each of which cases, the fees and expenses of such counsel are at the expense of the Indemnifying Party. An Indemnifying Party is not liable for any settlement of an action effected without its written consent (which consent may not be unreasonably withheld or delayed), nor may an Indemnifying Party settle any such action without the written consent of the Indemnified Party (which consent may not be unreasonably withheld or delayed). No Indemnifying Party may consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party a release from all liability with respect to the claim.
11. Limitations of Liability
11.1 Liability Disclaimer. DEALER’S COMMUNICATION OR BUSINESS DEALINGS WITH SHOPPERS WITH WHOM DEALER CORRESPONDS THROUGH THE BLINK AI SERVICE, INCLUDING PAYMENT AND DELIVERY OF RELATED GOODS OR SERVICES, AND ANY OTHER TERMS, CONDITIONS, WARRANTIES, OR REPRESENTATIONS ASSOCIATED WITH SUCH DEALINGS, ARE SOLELY BETWEEN DEALER AND THE SHOPPER. DEALER ACKNOWLEDGES AND AGREES THAT BLINK AI IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH SHOPPERS ON THE BLINK AI SERVICE. BLINK AI DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING OUT OF OR RESULTING FROM ANY CONTENT MADE AVAILABLE THORUGH THE BLINK AI SERVICE, INCLUDING ANY CONVERSATIONS, OR ANY ERRORS OR OMISSIONS THEREIN, ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR OTHERWISE TRANSMITTED VIA THE BLINK AI SERVICE AND/OR THE ACTIONS OR FAILURES TO ACT OF ANY USER OF THE BLINK AI SERVICE, ANY SHOPPER, OR ANY OTHER THIRD PARTY. DEALER IS SOLELY RESPONSIBLE FOR PROTECTING THE SECURITY OF THE SHOPPER DATA PROVIDED BY DEALER, THE DEALER WEBSITES, AND THE DEALER SYSTEMS. ALL CONTENT PROVIDED, UPLOADED, POSTED, OR OTHERWISE MADE AVAILABLE THROUGH THE BLINK AI SERVICE OR THE DEALER SYSTEMS IS THE SOLE RESPONSIBILITY OF THE PARTY FROM WHOM SUCH CONTENT ORIGINATES. THIS MEANS THAT DEALER, NOT BLINK AI, IS ENTIRELY RESPONSIBLE FOR ALL CONTENT THAT DEALER UPLOADS, POSTS, OR OTHERWISE TRANSMITS VIA THE BLINK AI SERVICE. BLINK AI DOES NOT CONTROL THE CONVERSATIONS FACILITATED VIA THE BLINK AI SERVICE AND, AS SUCH, DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF ANY CONTENT. DEALER UNDERSTANDS THAT BY USING THE BLINK AI SERVICE, DEALER MAY BE EXPOSED TO CONTENT THAT IS OFFENSIVE, INDECENT OR OBJECTIONABLE.
11.2 Limitation of Liability. EXCEPT WITH RESPECT TO DEALER’S BREACH OF ITS REPRESENTATIONS AND WARRANTIES IN SECTION 7.2 OR SECTION 8 OF THIS AGREEMENT, OR DEALER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED IN ANY MANNER UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR FOR DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF DATA, LOSS OF PROFITS OR REVENUE, OR LOSS OF USE OF THE BLINK AI SERVICE, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE OR SUCH PERSON KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES OR LOSSES WERE POSSIBLE OR FORESEEABLE. THE REMEDIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE SOLE REMEDIES AVAILABLE TO DEALER OR ANY THIRD PARTY FOR A CLAIM RELATING TO THE BLINK AI SERVICE TO THE FULLEST EXTENT PERMITTED BY LAW, (A) BLINK AI’S CUMULATIVE, AGGREGATE LIABLIITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS BLINK AI HAS BEEN PAID UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE; AND (B) IN NO EVENT SHALL BLINK AI BE LIABLE FOR: ANY ACTS OR OMISSIONS OF THIRD PARTIES; OR ANY THIRD-PARTY SERVICES, CODE, TECHNOLOGY, APPLICATIONS, POLICIES, PROCEDURES, OR PRODUCTS. THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THlS SECTION 11 SHALL APPLY REGARDLESS OF THE FORM OF ACTION AND SHALL APPLY EVEN IF ANY SUCH REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12. Independent Status of Parties
Nothing in this Agreement may be construed to constitute either Party as agent for the other Party. Neither Party has the right to bind the other Party, transact any business in the name or on behalf of the other Party in any manner or form, or to make any promise or representation on behalf of the other Party. The relationship of BLiNK AI to Dealer is that of an independent contractor.
13. Third-Party Offerings
BLiNK AI will not support or be responsible for any Dealers Systems or portions thereof. If Dealer chooses to install, access, or enable a plug-in or add-on third party service or application that integrates, interacts, or interoperates with the BLiNK AI Service (a “Third-Party Offering”), Dealer agrees that BLiNK AI may share with and receive from the third-party provider certain messaging and other data as needed for the interoperation or integration of such Third-Party Offering and that the third-party provider’s use of such data is governed by Dealer’s separate agreement with such third-party provider. Third Party Offerings are not maintained, monitored, tested, controlled, endorsed, or reviewed by BLiNK AI, are governed by their own terms and conditions, and are not included in the definition of BLiNK AI Service under this Agreement. Dealer acknowledges and agrees that BLiNK AI may discontinue the integration of Third-Party Offerings with the BLiNK AI Service at any time, with or without cause. For the avoidance of doubt, in no event shall BLiNK AI be required via the integration to permit, directly or indirectly, misuse of a party’s data or other intellectual property. With respect to Dealer’s or third parties’ technologies or services used or integrated with the BLiNK AI Service (including Third-Party Offerings), Dealer or the applicable third party will be and remain responsible for their respective services, technologies, and personnel, and all matters related thereto. BLiNK AI does not monitor or control the service limitation, suspension, or termination of such technologies and/or services and specifically disclaims any liability with regard to such service limitation, suspension, or termination. Dealer acknowledges that if it wishes to turn off or stop using certain Third-Party Offerings, Dealer may be required to contact the third-party provider to do so. DEALER ASSUMES FULL RESPONSIBILITY FOR ANY DAMAGES, LOSSES, COSTS, OR HARMS ARISING FROM THE USE OF OR INABILITY TO USE THIRD-PARTY OFFERINGS. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE EXTENT PERMITTED BY LAW, BLINK AI HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND OTHER TERMS AND CONDITIONS WITH REGARD TO THIRD-PARTY SERVICE OFFERINGS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
14. Assignment
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Neither this Agreement nor any of Dealers’ rights hereunder may be transferred or assigned without the prior written consent of BLiNK AI. Any assignment or transfer or attempted assignment or transfer in violation of this Section 14 is null and void and shall be deemed a material breach of this Agreement.
15. Governing Law
Regardless of the place of contract, place or performance, or otherwise, this Agreement and all amendments, modifications and supplements to them, and the rights of the Parties under them, shall be construed under, and governed by, the laws of the State of Texas, without giving effect to the principles of law (such as conflicts of law or choice of law rules) that might make the law of some other jurisdiction applicable. This Agreement and the transactions contemplated herein are not and shall never be subject to the Uniform Computer Information Transactions Act (prepared by the national Conference of Commissioners on Uniform State Laws) as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction.
16. Dispute Resolution
16.1 Arbitration. Any dispute or controversy arising out of, in connection with, or relating to this Agreement or its termination shall be settled exclusively by arbitration in Austin, Texas, USA, by one (1) arbitrator who is a former judge with at least twenty (20) years of practice and selected from the AAA’s National Roster in accordance with the arbitration rules of the American Arbitration Association then in effect (the “AAA Rules”) and shall be conducted in accordance with the AAA Rules; provided however, that this arbitration agreement does not preclude the Parties from seeking to enforce the covenants in Section 9 (Confidentiality) of this Agreement in any court of competent jurisdiction without resort to arbitration. The arbitrator’s award may include the manner in which fees of counsel and other expenses in connection with the dispute or controversy are to be borne by the Parties. The arbitrator’s authority and jurisdiction is limited to interpreting and applying the express provisions of this Agreement and the arbitrator has no authority to alter or add to the provisions of this Agreement. Judgment may be entered upon the arbitrator’s award in any court of competent jurisdiction.
16.2 Waiver of Rights. THE PARTIES UNDERSTAND THAT BY AGREEING TO ARBITRATE IN THE MANNER REQUIRED BY THIS SECTION 16, THEY ARE WAIVING THEIR RIGHTS TO HAVE ANY DISPUTE ARISING OUT OF THIS AGREEMENT TRIED BEFORE AND ADJUDICATED BY A JURY.
17. Miscellaneous
17.1 Notice Procedure. No notice or other communication under this Agreement is sufficient to affect any rights, remedies or obligations of a Party unless the notice or communication is in writing and (as elected by the Party giving the notice) is (a) personally delivered, (b) transmitted by e-mail (with receipt acknowledgment), (c) transmitted by a recognized courier service agreed to by the Parties from time to time or (d) transmitted by postage prepaid certified or registered mail (with a return receipt requested – airmail if international), to the Party to which notice or communication is being given at the appropriate address as set forth in the Order Form. Except as otherwise specified in this Agreement, all notices or communications are deemed to have been duly given (i) on the date of receipt if delivered personally, (ii) on the date of receipt of a reply email (not an automated response) affirmatively acknowledging receipt, if transmitted by e-mail, (iii) the day after pick-up by courier if delivered by courier or (iv) 3 days after mailing if delivered by the postal service. A Party may change its address by notice to the other Party. Notwithstanding the foregoing, waivers (of a performance obligation or otherwise), amendments to this Agreement, changes to the services, breach notifications, termination notifications, claims for indemnification or other formal communications expressly contemplated by this Agreement, as opposed to day-to-day communications and instructions, may not be sent by email.
17.2 Amendment and Modification, Waiver. Except as otherwise set forth herein, this Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof.
17.3 Entire Agreement; Severability. This Agreement (together with its Exhibits and the SOWs, all of the foregoing of which are incorporated herein by reference) represents the Parties’ entire agreement and supersedes all prior agreements, understandings, and representations, written or oral, between the Parties with respect to the subject matter hereof and may not be amended except in a writing signed by both Parties. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal, or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the Parties’ intent underlying the invalid, illegal, or unenforceable provision.
17.4 No Third-Party Rights. Except as permitted by this Agreement, this Agreement is entered into solely between the Parties and may not be deemed to create any rights in any third parties or to create any obligation of either Party to a third party.
17.5 Nonexclusive Relationship. Except as otherwise explicitly set forth in this Agreement, nothing in this Agreement shall prevent either Party from entering into similar arrangements with third parties.
17.6 Interpretation. The headings of each Section in this Agreement have been inserted for convenience of reference only and are not intended to limit or expand on the meaning of the language contained in the particular Section. Except where the context otherwise requires, wherever used, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders. Whenever this Agreement refers to a number of days, a month, or a year without using a term otherwise defined herein, such number refers to calendar days, a calendar month, or a calendar year. The captions of this Agreement are for the convenience of reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any provision contained in this Agreement. For the purposes of this Agreement: (a) the terms “including”, “includes”, “such as”, and the like shall not limit the generality of any description preceding such term and, as used herein, shall have the same meaning as “including, but not limited to”, “including, without limitation”, “such as”, or “by way of example”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; and (d) the words “will” and “shall” are to be interpreted as having the same meaning. Unless the context otherwise requires, references herein to: (i) Sections mean the Sections of this Agreement; (ii) an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The language of this Agreement shall be deemed to be the language mutually chosen by the Parties and no rule of strict construction shall be applied against either Party. Each Party represents that it has been represented by legal counsel in connection with this Agreement and acknowledges that it has participated in the drafting hereof. In interpreting and applying the terms and provisions of this Agreement, the Parties agree that no presumption shall apply against the Party who drafted such terms and provisions.
17.7 Counterparts. This Agreement and each Order Form may be executed in one or more counterparts and by electronic transmission (including via email in “portable document format” or via DocuSign or other digital signature service), each of which shall be deemed an original, but all of which shall constitute the same instrument.
Telematica™ Related Services & Communication Provisions
Human-Delivered Services From time to time, BLiNK AI may provide human-led services to and on behalf of the Dealer, including but not limited to onboarding support, training, campaign configuration, live monitoring, OEM service portal data access, updates, and outbound communications conducted on behalf of the Dealer. Dealer agrees that BLiNK AI personnel are authorized to act within the scope of services defined in this Agreement and under Dealer direction, and that Dealer retains responsibility for all content and customer communications made on its behalf.
Communications and Representation Dealer authorizes BLiNK AI to communicate with Dealer’s customers on its behalf using approved templates and content through phone, text, email, or other supported channels. This includes both AI-driven and human-delivered outreach. Dealer shall have the right to review and approve all initial communication templates and retains the right to request changes at any time.
Confidentiality This obligation extends to BLiNK AI employees and subcontractors who, in the course of service delivery, access Dealer systems, customer data, or act on behalf of Dealer in a support or customer-facing role.
Limitation of Liability for Human-Delivered Services Dealer acknowledges that BLiNK AI’s human-led services are advisory and support in nature and that Dealer retains control and responsibility for all decisions made and communications sent to customers. BLiNK shall not be liable for any claims arising from inaccurate or incomplete dealer-supplied data or instructions.