This Dealer Agreement (“Agreement”) is between Work Truck Solutions, Inc. (“Company”) and the dealer (“Dealer”) who has entered into this Agreement. Company acknowledges and agrees that as between Company and Dealer, all data, information and materials (“Data”) owned by Dealer or provided by Dealer pursuant to this Agreement including, without limitation, DMS data, inventory and photo feeds, body invoices from Dealer’s suppliers, other materials and information provided by Dealer as part of the onboarding and integration process, and all electronically stored Data and hard copy originals (“Dealer Data”), are and shall remain the property of Dealer. Dealer Data shall not be utilized by Company for any purpose other than as permitted by this Agreement. Dealer agrees to provide Company with the Dealer Data requested by Company in order to provide the services described in this Agreement to Dealer.
During the term of this Agreement, Dealer grants Company a revocable, non-exclusive, license to use Dealer trademarks and trade names on Company’s website and in promotional materials distributed by Company and to identify Dealer as a user of the Company’s products and services (collectively, “services”). Dealer also authorizes and grants to Company the perpetual, worldwide, sublicensable, freely assignable, transferrable, irrevocable right to use, analyze, process, aggregate, reproduce, distribute, modify, create derivative works from, and include in the Company services provided to others or other products and services offered by Company to others, the Dealer Data and Enhanced Data and other information made available to or provided to Company hereunder, provided that any such aggregated Enhanced Data will not contain any individually identifiable information that specifically identifies Truck Buyer, any other specific Truck Buyer-identifiable information, or any individually identified information about end buyers of work trucks from the Dealer. All such rights granted to the Company by Dealer regarding Dealer Data, Enhanced Data and other information will survive any termination of this Agreement.
Dealer agrees that it shall use the Company services and any Data made available by Company that has been processed, aggregated, created, developed, analyzed or modified by Company (“Enhanced Data”), only for purposes expressly permitted hereunder solely for Dealer’s internal business use, and shall not copy, make derivative works from, reverse engineer or decompile, sell, offer to sell or otherwise commercially exploit, assign, redistribute, disclose, disseminate or otherwise make available in any manner expressly not provided in this Agreement, any of the Company services or Enhanced Data, or any part thereof, or any of the concepts and/or technology or proprietary rights embodied therein, to any third party, without the prior written consent of Company in each instance, or use the Company Service or any Enhanced Data made available by Company to engage in any activity that is identical or similar to, or competitive with, Company services provided hereunder.
Dealer acknowledges and agrees that all rights, title and interest in the Company services, including Enhanced Data and any information or services incorporating Data or Enhanced Data, and any custom products or services created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Company or its licensors.
Company hereby grants Dealer, during the term of this Agreement, a non-transferable license under Company’s copyrights to use any Company software products and associated documentation provided to Dealer in connection with the Company services and all such software products and documentation necessary for Dealer’s utilization of the Company services as provided for in this Agreement.
Company shall not be responsible for any inability to provide the Company services which results from (i) the inability of Company to access Dealer Data; or (ii) Dealer requested information not being present in the Dealer’s DMS or body manufacturer's data.
Both parties agree that the terms, pricing and specific information concerning the Company services are Confidential Information of Company. “Confidential Information” includes any confidential, proprietary or trade secret information of a party, whether oral, or written, of a private, secret, proprietary or confidential nature, concerning either party or its business operations. Each party agrees to use the same degree of care to protect the confidentiality of the Confidential Information of the other party and to prevent its unauthorized use or dissemination as it uses to protect its own Confidential Information of a similar nature, but in no event shall exercise less than reasonable due diligence and care. Each party agrees to use the Confidential Information of the other party only for purposes permitted by this Agreement. All Confidential Information remains the property of the party disclosing the information and no license or other rights to Confidential Information is granted or implied, except as provided for herein. Both parties’ obligations under this Section shall survive any termination or expiration of this Agreement.
Company reserves the right to change or modify the terms and conditions contained in this Agreement, any policy or guidelines on Company’s website, and/or its services or discontinue the offering, support, and maintenance of any service to Dealer, at any time by providing Dealer with advance notice concerning changes or modifications. Unless otherwise specified, any changes or modifications will be effective upon posting of the revisions on Company’s website, and Dealer’s continued use of the Company services after such time will constitute Dealer’s acceptance of such changes or modifications. It is Dealer’s responsibility to review the Terms and Conditions contained in this Agreement and appearing on Company’s website and remain informed about any changes to them.
Limited Warranty, Liability, Indemnification and Assignment
Dealer represents and warrants that Dealer’s services, products or Dealer Data, and providing any Dealer Data or rights to Dealer Data to Company pursuant to this Agreement, do not and will not violate or infringe any third-party rights or personal rights or require consent of any third party under any agreement or instrument to which Dealer is a party or by which Dealer is bound.
Company does not make, and hereby specifically excludes and disclaims, all warranties regarding Company services and products, whether express or implied, including without limitation all implied warranties of merchantability, fitness for a particular purposes, non-infringement and implied indemnities, and all such services and products are provided “as is.” Company does not warrant that the services will satisfy Truck Buyer’s needs or that the services are or will be uninterrupted, complete or error-free.
Neither party shall have any liability for any loss of Dealer Data or Enhanced Data, or for any indirect, incidental, consequential, exemplary, punitive or special damages of any kind, including without limitation loss of profits or goodwill, for any matter in any way related to this Agreement, even if the other party knows or should have known of the possibility of such damages.
Dealer shall indemnify, defend and hold harmless Company and its officers, directors, associates, members, partners, employees and affiliates from and against any loss, liability or expenses (“Losses”) arising out of or relating to any claim, action, or proceeding brought by a third party (“Claim”) brought against Company regarding this Agreement arising out of breach by Dealer of any provisions of this Agreement.
Company shall indemnify, defend and hold harmless Dealer and its officers, directors, associates, members, partners, employees and affiliates from and against any Losses arising out of or relating to any Claim against Dealer regarding this Agreement arising out of breach by Company of any provisions of this Agreement.
Company enters into this Agreement as an independent contractor. Nothing in this Agreement will be construed as creating the relationship of joint-ventures, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent between Company and Dealer.
Nothing contained in this Agreement is intended to confer upon any third party any rights, benefits, or remedies of any kind or character whatsoever under or by reason of this Agreement. No party may assign this Agreement without obtaining the prior written consent of the other party; provided, however, that either party may assign this Agreement without the consent of the other party in connection with the sale of such party or all of substantially all of the assets of such party. This Agreement, as may be amended from time to time as described herein, together with any applicable terms, conditions or provisions appearing on the Company website as part of this Agreement, including without limitation under the heading “Work Truck Solutions Dealer Agreement,” sets forth the entire agreement, and supersedes any and all prior agreements, of Dealer and Company with respect to the subject matter hereof. This Agreement may be terminated by either party at any time with the advance notice and in the manner described herein or on in provisions on the Company’s website that form a part of this Agreement. Upon termination, access to the Company services and website will be terminated.