OCM Online Site Agreement

Standard Terms of Service

1. INTRODUCTION; ACCEPTANCE OF TERMS

(a)        Thank you for entering into an OCM Online Site Agreement ("Agreement") with Connections By Design LLC ("CBD"). As set forth in your Agreement, CBD has developed and owns Online Customer Management System™ software (the "Software"), which is designed to facilitate the follow-up and maintenance of customer databases for auto dealers. The Software runs on one or more World Wide Web host servers subcontracted by CBD (collectively, the "Site"). The services available to User at the Site, and to be provided by CBD in connection with the Site, are referred to as the "OCM Services." Persons who have entered into an Agreement with CBD are sometimes referred to in these TOS as the "User."

(b)        These Standard Terms of Service ("TOS") govern the OCM Services and your use of the Site. In your Agreement, you have agreed to these TOS. In addition, by logging on to the Site with the OCM Manager Login and Password assigned by CBD pursuant to the Agreement, you agree to these TOS.

2.        Use of Site; Ownership; Modifications to Software, Site AND TOS.

(a)        CBD hereby grants User the right to access the Site with the number of logins set forth in the Agreement, to enter data and information regarding User's customers and potential customers (together with all data and information stored by User at the site, "User Information") using the Software to create and maintain a customer database, to have such data and information stored at the Site, and to use such information and data to track and follow up with User's customers and potential customers. User understands and agrees that (a) User is not being granted any right to use the Software except by accessing the Site through the Internet as described above, and shall under no circumstances be authorized to copy, modify, adapt, reproduce, translate, reverse engineer, decompile, or sublicense or assign the Software or any part thereof, (b) User may not use, adopt or attempt to register anywhere in the world, whether alone or together with any other mark, symbol or name, "" or "Online Customer Management System," (c) the Software, the Site and the contents thereof are protected by copyright, trademark, patent, or other laws relating to intellectual property, and User may not use the same (other than content that originates from and is proprietary to User) except on the Site, unless CBD agrees otherwise in writing, and (d) the Software is intended for access and use by means of Web browsing software, and CBD does not commit to support, or guarantee that the Software and the Site will be compatible with, any particular browsing platform.

(b)        CBD IS THE SOLE AND EXCLUSIVE OWNER OF ALL RIGHT, TITLE AND INTEREST, INCLUDING TRADEMARKS, COPYRIGHTS, PATENTS, TRADE NAMES, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THE SITE, THE SOFTWARE, AND THE NAMES "OCM" AND "ONLINE CUSTOMER MANAGEMENT SYSTEM," INCLUDING WITHOUT LIMITATION ALL WEB PAGES AND PARTS THEREOF, ALL TEXT, DATA, CODE, MUSIC, SOUND, LOGOS, SYMBOLS, MARKS, PHOTOGRAPHS, GRAPHICS, AND VIDEO, AND ALL OTHER CONTENT AVAILABLE FROM CBD OR THE SITE.

(c)        CBD reserves the right at any time to revise and modify the Site and/or the Software, release subsequent versions of the Software and to alter features, specifications, capabilities, functions, and other characteristics of the Site and/or the Software, and to update these TOS from time to time, without notice to or the consent of User. If any such action materially and adversely affects the benefits User might reasonably be expected to obtain from the Software and the Site, User's sole and exclusive remedy shall be to terminate the Agreement pursuant to Section 7(a).

3        User's Representations and Warranties. User represents and warrants to CBD that (a) User has all corporate or other authority required to enter into the Agreement and the individual executing the Agreement on behalf of User is authorized to do so, (b) User has all necessary permits and licenses to operate its business as presently conducted, (c) User is a motor vehicle dealer and is not engaged in whole or in part, directly or indirectly, in any other type of business that has not been disclosed to and approved by CBD in writing, and (d) User is in compliance with all applicable federal, state or local laws, rules, regulations or ordinances, and all court, administrative and arbitrator's orders or judgments (collectively, "Laws") relating to its business.

4.        Use of Software and Site. In connection with the use of the Software and the Site, User agrees as follows:

(a)        The person designated in your Agreement as the "Authorized Contact" shall have primary responsibility for communicating with CBD. The Authorized Contact shall have authority to bind User, and CBD shall be entitled to rely on all information provided by and all requests of the Authorized Contact. User may change its Authorized Contact by notice to CBD. All obligations and restrictions imposed on User under the Agreement with respect to the use of the Software, the Site and User Information shall also apply to the Authorized Contact and all persons using the site under User's login(s).

(b)        User shall not attempt to gain unauthorized access to the Site, the User Information or other data or information at the Site.

(c)        CBD reserves the right to adopt operating rules and policies of general application regarding the OCM Services, the Site, the Software, and the use thereof (which may be in addition to these TOS), and to amend or restate the same from time to time, without the consent of User. CBD will provide User with notice (which may be by e-mail) of such rules and policies and amendments and restatements thereof.

(d)        User agrees to keep its login(s), password(s) and account number confidential, to allow no other person to use the same except in the presence of User or its authorized employees, and to notify CBD promptly if User has any reason to believe that any third party has unauthorized access to User's account or has otherwise gained unauthorized access to the Site. User shall be responsible for any and all use of the Site or the User Information occurring under User's login(s) or account number.

(e)        User shall not enter, store or maintain any User Information or other data or information at the Site that, in CBD's sole discretion, (i) may be illegal to store or maintain or to use for its intended purposes under any Laws, (ii) may infringe or violate any person's property rights or right to privacy, or (iii) is inflammatory, obscene, or offensive, or is inconsistent with CBD's operating rules and policies in effect from time to time.

(f)        User shall not, with respect to the use of the Site, the Software, the OCM Services or the User Information, engage or permit any of its employees or agents to engage in any activities that (i) constitute or encourage a violation of any Laws, (ii) defame, impersonate or invade the privacy of any person, (iii) infringe the intellectual property or other rights of any third party, (iv) are in any way connected with the transmission of "junk mail", "spam" or the unsolicited mass distribution of e-mail, or with any marketing practices that CBD deems unethical.

(g)        Upon CBD's request, User shall provide CBD with true, accurate and current information about User and its business, and shall promptly notify User of material changes in the same.

(h)        CBD, its employees and agents shall have the right, but not the obligation, to review the User Information at any time without notice to User for compliance with the terms of the Agreement or for the purposes described in Section 5(a).

5.        Maintenance, Support, Hardware Requirements and Custom Programming

(a)        User further acknowledges and agrees that (a) CBD may access User's account and the User Information as necessary to identify or resolve technical problems, upgrade software, or respond to questions or complaints about the OCM Services, (b) it may be necessary to take down the Site from time to time or on a periodic basis to resolve technical problems, upgrade software, or otherwise help ensure safe and efficient operation of the Site, and User waives any and all claims against CBD arising therefrom, (c) due to power interruptions or other conditions outside CBD's control, the Site, the OCM Services and the User Information may occasionally be unavailable. CBD will use reasonable efforts to minimize the time during which the Site is down for such reasons.

(b)        User's Authorized Contact can obtain technical assistance and support relating to the Site by requesting assistance by email, facsimile, or telephone. The e-mail addresses and the telephone and facsimile numbers for technical assistance and support are listed at www.connectionsbydesign.com. CBD reserves the right to establish limitations on the available hours and the extent of such support. All assistance and support shall be subject to the provisions of Section 5(c) below.

(c)        CBD agrees to provide ten hours of customer support relating to the use of the Software and the Site at no additional charge during each six month period during the term of the Agreement. Any custom programming or additional support by CBD with respect to the Software or User's use of the Site shall be charged at $85 per hour. CBD may change such hourly rate by written notice to User, which change shall take effect upon commencement of the next renewal term, if any.

(d)        User is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Site, and CBD and its agents shall not be obligated to provide support relating thereto. CBD and its agents may elect to provide such support, which shall be charged at CBD's hourly rate then in effect.

(e)        User understands that it will need the minimum hardware and operating system requirements described below for reasonable performance of the Software and the Site, and that failing to meet such minimum requirements may cause the Software or the Site to perform inadequately:

IBM Compatible PC

120 Mhz Pentium or equivalent processor

32 Megabytes of RAM

33,600 Baud Modem

Microsoft Windows 95 operating system

Dial-up ISP Connection to Internet

5.0 or greater version of Microsoft Explorer Internet Web browser

1 Pop3 e-mail account (minimum per User)

Laser or Ink Jet Printer (may be shared)

100 Megabytes of Hard Disk Storage (on at least 1 computer for backup)

(f)        User understands that CBD subcontracts servers for the Site from Internet service provider hosts, that most but not all such hosts back up server programs and data daily, and that hosts may charge an additional fee to restore the User Information if needed. CBD is not responsible for the backup and security of the User Information and strongly recommends User back up User Information daily to a computer hard drive at its location.

6.        Confidentiality of User Information. CBD agrees to take reasonable actions to prevent disclosure of or access to User Information relating to customers and potential customers by unauthorized persons, and will not disclose such User Information to any third party without the written consent of User; provided, however, that notwithstanding the foregoing, CBD may disclose (without any obligation to do so under the Agreement) such User Information as CBD determines is necessary: (a) to comply with any Laws; (b) to perform its obligations under or to enforce the Agreement; (c) to respond to claims that CBD or User is engaged (through the Site or otherwise) in activities that violate the rights of third parties or violate any Laws.

7.        Termination. Notwithstanding anything to the contrary in the Agreement or these TOS, the Agreement may be terminated during the initial term or during any renewal term as follows:

(a)        By User as provided in Section 2(c);

(b)        By CBD at any time upon written notice to User, if User fails to pay any amount owing to CBD within ten (10) days after notice of nonpayment is given to User; provided, however, CBD shall not be required to give more than one such notice of nonpayment during any calendar year, after which User shall be in default during the balance of such calendar year, without the necessity of notice, if any payment is not made within such ten (10)-day period;

(c)        By CBD immediately upon written notice to User, if CBD determines in its sole discretion that User is in violation of Section 4(e) or 4(f), or is engaged in activities that may damage the reputation of CBD or the Site;

(d)        By CBD upon thirty (30) days prior written notice to User if CBD determines that it cannot economically provide the OCM Services; and

(e)        By either party if the other party has materially breached any other provision of the Agreement, and such breach (if curable) is not cured within twenty (20) days after written notice specifying the breach.

8.        Rights and Remedies upon Termination. If the Agreement is terminated for any reason, User's right to access and use the Site and the Software and receive OCM Services shall automatically terminate. In such case, CBD shall provide User with a hard copy of the User Information and CBD shall thereafter have the right to delete from the Site all User Information and any and all other data or information contained in User's account. If User is in default as described in Section 7(b), 7(c) or 7(e) of these TOS, and CBD has not exercised its right to terminate the Agreement pursuant to Section 7, CBD shall have the right, without prejudice to its other rights and remedies under the Agreement, these TOS or applicable law, to immediately block or terminate User's access to the Site, the Software and the User Information without notice to User.

9.        Indemnification. User and the individual, if any, executing the Agreement on behalf of User shall indemnify, hold harmless and defend (with counsel acceptable to CBD) CBD, its members (and their heirs and representatives), employees and independent contractors (including any Site hosts), successors and assigns from and against any and all claims, demands, liabilities, losses, fines, costs, expenses (including attorney fees at trial, on appeal or in any bankruptcy proceeding) and damages directly or indirectly arising out of or related to (a) the failure by User, its employees or agents to punctually perform its obligations under the Agreement, (b) the failure of User, its employees or agents to comply with any Laws in connection with its business or the use of the Software, the Site or the User Information, and (c) the use or misuse by User, its employees or agents of the Site, the Software, or the User Information.

10.        Disclaimer of Warranties and Liabilities. USER UNDERSTANDS AND AGREES THAT THE SOFTWARE, THE SITE AND THE OCM SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THE AGREEMENT, THESE TOS NOR ANY DOCUMENTATION FURNISHED BY CBD TO USER IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT USERS'S ACCESS TO THE SITE OR THE OCM SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE AND THE SITE HAS INHERENT LIMITATIONS AND USER MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS TO PROTECT USER INFORMATION. USER ACKNOWLEDGES AND AGREES THAT ANY USER INFORMATION OR OTHER MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE IS AT USER'S OWN RISK AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. CBD ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT USER'S USE OF THE CONTENT IN THE SITE OR THE SOFTWARE OR OTHER INFORMATION FURNISHED TO USER PURSUANT TO THE AGREEMENT OR THESE TOS COMPLIES WITH APPLICABLE FEDERAL, STATE OR LOCAL LAWS, AND USER AGREES THAT IT IS USER'S SOLE RESPONSIBILITY TO DETERMINE SUCH COMPLIANCE. CBD, ITS MEMBERS (AND THEIR HEIRS AND REPRESENTATIVES), EMPLOYEES AND INDEPENDENT CONTRACTORS (INCLUDING SITE HOSTS), SUCCESSORS, ASSIGNS AND AGENTS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF ANY OF SUCH PERSONS IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM USER'S USE OR INABILITY TO USE THE SITE, THE SOFTWARE, OR THE OCM SERVICES, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SITE, THE SOFTWARE OR THE OCM SERVICES. IF IT IS DETERMINED BY A COURT OF COMPETENT JURISDICTION THAT ANY PORTION OF THE FOREGOING EXCLUSIONS OF WARRANTIES AND LIABILITIES IS VOID OR UNENFORCEABLE, CBD'S LIABILITY TO USER SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE MONTHLY USER FEE PAYMENTS ACTUALLY MADE BY USER TO CBD DURING THE THEN-EXISTING TERM.

11.        LATE FEE. User shall be assessed a late fee of $25 if the monthly user fee required under the Agreement is not paid within 10 days of the invoice due date. If a monthly user fee remains delinquent 20 days after its invoice due date, User shall be assessed an additional late fee of 5% of the delinquent amount (subject to a minimum of $35) for each month of delinquency without waiving its other rights and remedies under the Agreement or these TOS. The above late fees represent CBD's estimate of its reasonable damages incurred in connection with late payments, and are in addition to CBD's rights and remedies under Section 7.

12.        Miscellaneous. The provisions of Sections 2(a), 2(b), 3, 8, 9 and 10 shall survive any termination or expiration of the Agreement. No agency relationship, partnership or joint venture is created nor intended to be created by the Agreement or these TOS or the granting of certain rights to User hereunder. User shall not assign the Agreement, these TOS or any of its rights or obligations thereunder without the prior written consent of CBD, which may be withheld in its sole and absolute discretion. The Agreement and these TOS shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. Except as otherwise expressly provided in the Agreement or these TOS, all notices or other communications required or permitted hereunder shall be in writing and shall be sent by United States first-class mail (with postage prepaid) or by facsimile (with a copy by first-class mail, with postage prepaid) and shall be deemed received and effective three (3) days after the date of posting, if mailed, and upon receipt of confirmation of a successful facsimile transmission, if sent by facsimile. The Agreement and these TOS shall be governed by and construed under Oregon, USA law (without regard to conflicts of laws principles), regardless of whether User resides or transacts business with CBD in Oregon. User hereby agrees that the Courts of Multnomah County, Oregon, USA or, at CBD's option, the United States District Court for the District of Oregon, shall have jurisdiction to hear and determine any disputes between the parties relating to the Agreement. User further consents in advance to such jurisdiction and waives any objection it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. The Agreement and these TOS set forth the entire agreement and understanding of the parties and supersede all prior agreements and understandings relating to the subject matter hereof. If any provision of the Agreement or these TOS is held to be invalid, such event shall not affect, in any respect whatsoever, the validity of the remainder of the Agreement or these TOS, and the remainder shall be construed without the invalid provision so as to carry out the intent of the parties to the extent possible without the invalid provision. CBD's failure to insist upon or enforce strict performance of any provision of the Agreement or these TOS shall not be construed as a waiver of any provision or right, nor shall the course of conduct between the parties modify any provision of the Agreement or these TOS. Neither party shall be liable to the other for any delay or failure in performance under the Agreement or these TOS resulting directly or indirectly from acts of nature or causes beyond its reasonable control. If any party hereto brings an action or proceeding for the declaration of the rights of the parties hereunder, for injunctive relief or for an alleged breach or default of, or any other action arising out of the Agreement or these TOS, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding (including any bankruptcy case), in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment.