NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ANY PORTION OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT OPEN THIS PACKAGE AND RETURN SOFTWARE UNOPENED TO THE PLACE OF PURCHASE WITHIN 10 DAYS OF PURCHASE ALONG WITH YOUR ORIGINAL RECEIPT FOR A REFUND OR IF YOU HAVE PURCHASED THIS SOFTWARE ONLINE, STOP INSTALLATION/ACTIVATION RIGHT NOW BY CLICKING ON THE “I DISAGREE” BUTTON LOCATED AT THE BOTTOM OF THIS SCREEN AND EXIT THE WEBSITE IMMEDIATELY.
DEALER SOLUTION GROUP, INC. AND ITS SUPPLIERS OWN ALL INTELLECTUAL PROPERTY IN THE SOFTWARE. THE SOFTWARE IS LICENSED, NOT SOLD. DEALER SOLUTION GROUP, INC. PERMITS YOU TO COPY, DOWNLOAD, INSTALL, USE OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OR INTELLECTUAL PROPERTY OF SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
THIS SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING. THIS TECHNOLOGY MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET AND MAY PREVENT USES OF THE SOFTWARE THAT ARE NOT PERMITTED.
THE AUTOXPLORER SOFTWARE WAS DESIGNED WITH THE SPECIFIC PURPOSE OF CREATING AN ADDITIONAL MEANS OF ORGANIZING, MAINTAINING RECORDS, AND CONDUCTING BUSINESS BY WAY OF A SOFTWARE APPLICATION WHICH, BY NATURE OF COMPUTER APPLICATIONS, IS MORE TECHNILOGICALLY EFFICIENT TO THAT OF MANUAL, LONG-HAND BUSINESS PROCEDURES. THE SOFTWARE IS; THEREFORE, NOT INTENDED TO BE A SUBSTITUTE FOR TRADITIONAL METHODS, BUT RATHER, AN ADDITIONAL BUSINESS TOOL WHICH SHOULD BE CROSS-REFERENCED WITH CURRENT AND ON-GOING BOOKKEEPING.
1. Definitions
“DSG” means Dealer Solution Group, Inc., a California corporation, doing business as AutoXplorer, 1505 E. 17th Street, Santa Ana, California 92705.
“Computer” means a virtual or physical computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (e.g. temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations and similar organizations.
“Output File” means an output file generated by you using Software.
“Permitted Number” means one (1); specifically (1) license, unless otherwise indicated under a valid license (e.g. volume license) granted by DSG.
“Software” means (a) all of the information with which this agreement is providing, including but not limited to DSG software files and other computer information, and related explanatory written materials and files (“Documentation”); and (b) any modified versions and copies of, upgrades, updates and additions to, such information, provided to you by DSG at any time, to the extent not provided under a separate agreement (collectively “Updates”).
2. Software License. If you obtained the Software from DSG or one of its authorized licensees and as long as you comply with the terms of the agreement, DSG grants you a non-exclusive and non-transferable license to use the Software in the manner and for the purposes described in Documentation, as further set forth below.
2.1 General Use. You may install and use one copy of the Software on up to the Permitted Number on your compatible Computers; or
2.2 Server Deployment. You may install the Permitted Number of copies of the Software on Computer file server(s) within your internal Network for the purpose of downloading and installing the Software on up to the Permitted Number of Computers within the same Internal Network.
2.3 Server Use. You may install the Permitted Number of copies of the Software on Computer file server(s) within your Internal Network only for use of the Software initiated by an individual from a Computer within the same Internal Network. The total number of users (not the concurrent number of users) able to use the Software on such Computer file server(s) may not exceed the Permitted Number.
2.4 Backup Copy. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
3. Ownership of Software. You agree that you own only the magnetic or physical media (the enclosed disks) on which the Software is recorded or affixed but DSG retains all the rights, title, and ownership of the Software recorded on the original disk copies and all subsequent copies of the Software, regardless of the form or media on which the original or other copies may exist. This license is not a sale of the original Software or any copy to you.
3.1 Intellectual Property Ownership. The Software and any authorized copies that you make are the intellectual property of and are owned by DSG. The structure, organization and code of the Software are the valuable trade secrets and confidential information of DSG. The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by DSG. You acknowledge and agree that the only right granted to you by this agreement is a limited license to use the Software according to the terms and conditions of this agreement.
4. Restrictions.
Notices. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
No Modifications. You may not modify, adapt or translate the Software. Additionally, you may not copy the Software and other accompanying materials for any reason, except and to the extent provided in paragraph 2.4 herein.
No Reverse Engineering. You will not reverse engineer, decompile, or otherwise attempt top discover the source code of the Software except to the extent you may be expressly permitted under applicable law to decompile only in order to achieve interoperability with the Software.
No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product on Computers. You are not required to use all component parts of the Software, but you may not unbundle the component parts of the Software for use on different Computers. You may not unbundle or repackage Software for distribution, transfer or resale.
No Transfer. YOU WILL NOT RENT, LEASE, SELL, SUBLICENSE,ASSIGN OR TRANSFER YOUR RIGHTS TO THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN.
No Service Bureau. You will not use or offer the Software on a service bureau basis. Limited to Permitted Use. You may not use the Software in excess of your “Permitted Use”.
Use in United States, Canada and Mexico Only. You may not use the Software outside of the United States, Canada or Mexico.
Termination of Software Use. Without prejudice to any other rights, DSG may terminate your right to use the Software under this agreement if you fail to comply with the terms and conditions of this agreement. In such event, you must destroy all copies of the Software and all of its component parts. DSG reserves the right to terminate or suspend your use of the Software for non-payment of license fees, support fees, or non-payment of any services provided by DSG and/or its affiliates. You may not use the Software after any expiration, termination or cancellation of this Agreement or any license granted herein under.
No Refund After Installation/Activation. You may not obtain a refund or exchange after you have installed or activated the DSG Software.
5. Updates. If the Software is an upgrade or update to a previous version of DSG software, you must possess a valid license to such previous version in order to use such upgrade or update. After you install such update or upgrade, you may continue to use any such version in accordance with its end-user license agreement only if (a) the upgrade or update and all previous versions are installed on the same Computer; (b) the previous versions or copies thereof are not transferred to another party or device unless all copies of the update or upgrade are also transferred to such party or device; and (c) you acknowledge that any obligation DSG may have to support the previous version(s) may be ended upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an update or upgrade. Upgrades and updates may be licensed to you by DSG with additional or different terms. Upon updating the Software, it is your responsibility to double check all numbers and calculations created by DSG/AutoXplorer. DSG/AutoXplorer is not responsible for any calculation problems, including any miscalculations. In the event you find a bug or have a calculation problem with this software, it is your responsibility to report the problem to DSG for repair within a reasonable time.
6. LIMITED WARRANTY. DSG warrants to the individual or entity that first purchases a license for the Software for use pursuant to the terms of this agreement that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO PATCHED, FONT SOFTWARE CONVERTED INTO OTHER FORMATS, PRE-RELEASE (BETA), TRYOUT, STARTER, EVALUATION, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF SOFTWARE, OR WEBSITES, ONLINE SERVICES OR CD SERVICES. All warranty claims must be made, along with proof of purchase, to DSG Customer Support Department within such ninety (90) day period. If the Software does not perform substantially in accordance with the Documentation, the entire liability of DSG and its affiliates and your exclusive remedy will be limited to either, at DSG’S option, replacement of the Software or refund of the license fee you paid for the Software. You agree that the foregoing constitutes your sole and exclusive remedy for breach by DSG of any warranties made for Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS AND SPECIFIC REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
7. DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY DSG AND ITS AFFILIATES AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR YOU AGAINST DSG, ITS AFFILIATES AND SUPPLIERS’ BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, DSG, ITS AFFILIATES, AND SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES, AND ONLINE SERVICES AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. The provisions of Sections 7 and 8 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this Agreement.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO EVENT WILL DSG, ITS AFFILIATES, OR SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL DAMAGE, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF A DSG REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. DSG’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME STATES.
9. Export Rules. You agree that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively “Export Laws”). In addition, if the Software is identified as an export control item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation (including without limitation Iran, Syria, Sudan, Libya, Cuba and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this agreement.
10. Governing Law. This Agreement shall be governed by and construed under the law of the State of California, without regard to its conflict of laws provisions. Any controversy or proceeding arising out of or related to this Agreement shall be brought only in the federal or state courts in the State of California and County of Orange. The parties expressly submit to personal jurisdiction and venue in any of those courts and will not object to such jurisdiction on the ground of forum non conveniens or otherwise.
11. General Provisions. If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This agreement will not prejudice the statutory rights of any party dealing as a consumer. This agreement may only be modified by a writing signed by an authorized officer of DSG. This is the entire agreement between DSG and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications, invoices, purchase orders or advertising relating to the Software.
12. Compliance with Licenses. If you are a business, company or organization, you agree that, no more than once every 12 months, DSG or its authorized representative shall, upon 10 days’ prior notice to you, have the right to inspect your records, systems, and facilities to verify that your use of any and all DSG software is in conformity with your valid license from DSG. If a verification discloses that your use is not in conformity with a valid license, you shall immediately obtain valid licenses to bring your use into conformity.
13. Connectivity and Privacy.
13.1 Software Files. When you use the Software to open files that have been enabled to display ads or information you have agreed to be supplied to you by DSG or its suppliers, affiliates or a third party through registration with Ads for DSG service, your computer may connect to a website operated by DSG, an advertiser or other third-party. Your Internet Protocol (IP) address is sent when this happens. The party hosting the site may use technology to send (or “serve”) advertising or other electronic content that appears in or near the opened file. The website operator may also use JavaScript, web beacons (also known as action tags or single-pixel gifs), and other technologies to increase and measure the effectiveness of advertisements and to personalize advertising content. Your communication with DSG websites is governed by the DSG Online Privacy Policy found at WWW.AUTOXPLORER.COM. DSG may not have access to or control over features that a third party may use, and the information practices of third party websites are not covered by the DSG Online Privacy Policy and you hereby agree that DSG will not be liable to you for any problems or issues arising out of or associated with use of such programs.
13.2 Updating. You acknowledge and agree that the Software may cause your Computer to automatically connect to the Internet to check for Updates that are available for automatic download to your Computer and to let DSG know the Software is successfully installed. Only non-personal identifying information is transmitted to DSG when this happens. Your communication with DSG websites is governed by DSG’S Online Privacy Policy found at WWW.AUTOXPLORER.COM.
14. Online Services. The Software may rely upon or facilitate your access to websites maintained by DSG or its affiliates or third parties offering goods, information, software and services (“Online Services”). Your access to and use of any website or online services is governed by the terms, conditions, disclaimers and notices found on such site or otherwise associated with such services, for example, the Terms of Use located at WWW.AUTOXPLORER.COM. DSG may at any time, for any reason, modify or discontinue the availability of any website and Online Services. DSG does not control, endorse, or accept responsibility for websites or Online Services offered by third parties or its affiliates. Any dealings between you and any third party or affiliates in connection with a website or Online Services, including delivery of and payment for goods and service and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party, and DSG shall not be liable to you or such third party in the event of any type of loss or damage occurring as a result of such dealings. EXCEPT AS EXPRESSLY AGREED BY DSG OR ITS AFFILIATES TO A THIRD PARTY IN A SEPARATE AGREEMENT, YOUR USE OF WEBSITES AND ONLINE SERVICES IS AT YOUR OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF SECTIONS 7 AND 8.
15. No Waiver. Failure by DSG to enforce any rights granted to it by this agreement or to take action against you or any third party affiliated to you in the event of any breach of this agreement shall not be deemed a waiver by DSG as to subsequent actions in the event of future breaches.
16. Right to Use Information for Statistical Purposes. By using this Software, you hereby grant DSG the right to gather, collect, take, compile, publish, incorporate and otherwise use non-personal information (e.g. products sold, inventory retained, price of product, location of sale, etc.) you enter into the Software program for purposes of creating general statistics for the marketplace. Such information will be limited to non-personal information and will not include, refer to, mention or incorporate any personal information such as the identity of the purchasers, credit card information, address or telephone numbers of purchasers, social security number, state identification numbers, check information, and the like.
17. Acknowledgement. By your opening of the Software’s sealed package, you acknowledge that you have read and understand the foregoing and that you agree to be bound thereby.
18. Miscellaneous. All sales of this product are final. If for any reason, the software is reinstalled/reactivated in the same computer and you are not subscribed to DSG technical support, a reactivation fee will apply. If there are any outstanding past due balances on any services provided by DSG, DSG has the right to suspend or terminate use of the programs/software/services immediately. An applicable fee will apply if there are any changes in company information (e.g. address, name change, etc.). It is your responsibility to double check all numbers and calculations created by AutoXplorer. AutoXplorer is not responsible for any calculation problems, including any miscalculations. In the event you find a bug or have a calculation problem with this software, it is your responsibility to report the problem to DSG for repair within a reasonable time. THIS LICENSE IS NON-TRANSFERABLE.