Terms and Conditions

 

1. Purpose of Agreement. SPIFFIT MOTOR, LLC (“SPIFFIT”) is the owner and licensee of certain computer software programs relating to incentive management (the “Spiffit Works”). This Agreement sets forth the terms and conditions under which SPIFFIT will license the Spiffit Works to Client.

2. Grant of License.

  • 2.1 Subject to Client’s compliance with the terms of this Agreement, SPIFFIT grants Client a nonexclusive, nontransferable license to:
    • a. load and execute the Spiffit Works in executable machine-readable form only, and subject to the limitations on the number of sites, workstations and/or users specified herein; and
    • b. use any user documentation provided by SPIFFIT for the Spiffit Works (“Documentation”) as required to exercise the rights granted in this Section
  • 2.2 All rights not expressly granted to Client in this Agreement are reserved by SPIFFIT, and Client may not use the Spiffit Works or Documentation in any manner not expressly authorized by this Agreement. Client may use the Spiffit Works and Documentation for its internal business operations only and not by, or for the benefit of, any affiliate, subsidiary, parent company or any other third party, nor may the Spiffit Works be used for service bureau services. Client may exercise its rights under this Agreement only in the states and territories of the United States.
  • 2.3 Client shall not: remove or destroy any proprietary rights marks or legends on or in the Spiffit Works or Documentation and on authorized copies; modify, enhance, adapt, translate, or create derivative works of the Spiffit Works or Documentation; transfer, distribute, assign, sublicense, rent, lease, export or sell the Spiffit Works; decompile, disassemble, or reverse engineer the Spiffit Works; or make copies of the Spiffit Works or Documentation other than for archival and backup purposes.
  • 2.4 Client acknowledges and agrees that the Spiffit Works is licensed to operate only on the operating environment (“Environment”) and in association with the third party computer software programs (“Third Party Software”) agreed to by SPIFFIT. Client is solely responsible for the acquisition, use and maintenance of all components of the Environment and all Third Party Software, and all associated costs and expenses.

3. Delivery, Installation and Training.

  • 3.1 SPIFFIT will provide the Spiffit Works, Documentation, and any other materials identified by SPIFFIT to Client, and will provide for the installation of or access to the Spiffit Works, within the time frames agreed to by SPIFFIT during Phase I. Client shall make available a suitable conditions for installation with all resources required.
  • 3.2 All rights not expressly granted to Client in this Agreement are reserved by SPIFFIT, and Client may not use the Spiffit Works or Documentation in any manner not expressly authorized by this Agreement. Client may use the Spiffit Works and Documentation for its internal business operations only and not by, or for the benefit of, any affiliate, subsidiary, parent company or any other third party, nor may the Spiffit Works be used for service bureau services. Client may exercise its rights under this Agreement only in the states and territories of the United States.
  • 3.3 Installation of the Spiffit Works by SPIFFIT is included in the software license fees described in herein. In addition, for no additional fees, SPIFFIT will provide the training for the Spiffit Works at Client’s facility or via the internet, as described above. Client may acquire additional services from SPIFFIT at SPIFFIT’s then-current professional services rates, or as otherwise agreed between the parties.

4. Acceptance. The Spiffit Works is deemed accepted fourteen (14) calendar days after installation unless, within that time (the “Acceptance Period”), Client provides written notice to SPIFFIT that the Spiffit Works does not operate in substantial conformance with the warranties contained in this Agreement. If Client provides such written notice to SPIFFIT, SPIFFIT will use commercially reasonable efforts to, at its sole option, repair or replace the Spiffit Works within a reasonable time of its receipt of the notice. However, if SPIFFIT is unable to repair or replace the Spiffit Works within thirty (30) days of its receipt of the notice, then Client may terminate this Agreement, return all Spiffit Works, Documentation and other materials to SPIFFIT, and receive a full refund of all fees paid to SPIFFIT for the Spiffit Works under this Agreement.

5. Warranties and Disclaimers.

  • 5.1 SPIFFIT warrants that for a period thirty (30) days after the Acceptance Date, the Spiffit Works will operate in substantial compliance with its applicable Documentation. If during this period the Spiffit Works does not perform as warranted, then SPIFFIT will use commercially reasonable efforts to correct the nonconformance. If SPIFFIT is unable to correct the nonconformance within a reasonable time, but in no event more than sixty (60) days, Client may terminate this Agreement, return all Spiffit Works, Documentation, and other materials to SPIFFIT, and receive a full refund of all fees paid to SPIFFIT for the Spiffit Works under this Agreement.
  • 5.2 This Spiffit Works warranty applies only to Spiffit Works used in accordance with this Agreement, and does not apply if the Spiffit Works media, or Spiffit Works code has been subject to accident, misuse, or modification, and only if the nonconformance can be demonstrated on an unmodified version of the Spiffit Works. It shall not be deemed a breach of this Spiffit Works warranty if any failure of the Spiffit Works to operate in substantial compliance with its applicable Documentation is caused, in whole or in part, by an error, malfunction or other problem with the Environment and/or any one or more Third Party Software products.
  • 5.3 If SPIFFIT investigates any nonconformance and such nonconformance is found to be caused by operator error, erroneous system configuration, modification, or other cause not inherent in the Spiffit Works, SPIFFIT reserves the right to charge for its services at its then-current professional service rates.
  • 5.4 SPIFFIT does not warrant that the functions contained in the Spiffit Works will meet Client’s specific requirements, the requirements of Client’s particular industry, or will be error-free or operate without interruption.
  • 5.5 THE WARRANTY AND REMEDY PROVIDED ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTY AND REMEDY UNDER THIS AGREEMENT, AND ARE PROVIDED IN LIEU OF, AND CREDENDO DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. Technical Support Services.

  • 6.1 Client may obtain technical support services for the fees and pursuant to the terms herein and subject to SPIFFIT’s then-current technical support services policies and procedures.
  • 6.2 Technical support services include: (a) when and if available, any updates, releases and enhancements to the Spiffit Works made generally available to all Clients for no charge; and (b) telephone and remote computer support as to the use and operation of the Spiffit Works, and error and defect verification, analysis and correction for the Spiffit Works to the extent possible by telephone and remote computer.
  • 6.3 Client may also request on-site assistance from SPIFFIT. In such event Client shall pay SPIFFIT its then current per-diem fees, and will reimburse SPIFFIT for all reasonable traveling expenses, including meals, travel and lodging.

7. Confidentiality.

  • 7.1 During this Agreement, each party may have access to information that is considered confidential by the other. This information may include, but is not limited to, the Spiffit Works, Documentation, technical know-how, technical specifications, software object code and source code, protocols, processes, strategic business plans, results of testing, systems, financial information, product information, methods of operation, customer information, supplier information and compilations of data (“Confidential Information”).
  • 7.2 Each party shall use the other party’s Confidential Information only for the purposes of this Agreement. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information.
  • 7.3 Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties on a need to know basis only, provided that such employees, contractors and/or third parties have written or legal confidentiality obligations to that party no less stringent than those contained in this Agreement.
  • 7.4 Upon termination of this Agreement, each party shall return the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s, benefit. The provisions of this Section shall survive termination of this Agreement for so long as the Confidential Information remains confidential.
  • 7.5 THE WARRANTY AND REMEDY PROVIDED ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTY AND REMEDY UNDER THIS AGREEMENT, AND ARE PROVIDED IN LIEU OF, AND CREDENDO DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. Ownership.SPIFFIT is the owner or licensee of all intellectual property rights in and to the Spiffit Works and Documentation, including copyrights, trade secrets, trademarks, patents, and know-how. Client acknowledges the foregoing and agrees to implement software protection measures designed to prevent unauthorized use and reproduction of the Spiffit Works or Documentation, including, but not limited to, keeping the Spiffit Works and Documentation in a secure place, under reasonable access and use restrictions not less strict than those applied by Client with respect to its own confidential information.

9. Indemnification.

  • 9.1 SPIFFIT shall defend, at its sole expense, any third party claim, demand or suit (“Claim”) against Client alleging that Client’s authorized use of the Spiffit Works and Documentation infringes a third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right, and shall indemnify and hold Client harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) awarded or assessed against Client in association with the Claim, or reached through a negotiated settlement of the Claim.
  • 9.2 This indemnification extends only to the Spiffit Works delivered by SPIFFIT and does not extend to: (1) any modifications, enhancements or other changes to the Spiffit Works or Documentation created by or on behalf of Client (unless created by SPIFFIT); and/or (2) any Claim arising out of the combination of the Spiffit Works and any other code, software, hardware or any other products, provided that such infringement would not have occurred but for such combination.
  • 9.3 If the Spiffit Works infringes a third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right, or SPIFFIT reasonably believes that it is likely to infringe, then SPIFFIT shall, at its sole expense either (1) procure for Client the right to continue using the Spiffit Works; or (2) replace or modify the Spiffit Works so that it is non-infringing, but maintains substantially the same functionality. If neither of these options is reasonably practical for SPIFFIT, SPIFFIT may terminate Client’s right to use the Spiffit Works and Documentation and refund to Client all license fees paid for the Spiffit Works and Documentation, prorated on a straight-line basis over a period of three (3) years from the Acceptance Date of the Spiffit Works.
  • 9.4 Except for claims that are SPIFFIT’s obligation under Section 9.1, Client shall defend, at its sole expense, any Claim against SPIFFIT arising out of Client’s (a) use of the Spiffit Works and/or breach of this Agreement; and/or (b) any assertion that Client made false, misleading and/or otherwise deceptive statements with regard to SPIFFIT and/or the specifications, features or capabilities of the Spiffit Works; and shall indemnify and hold SPIFFIT harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) awarded or assessed against SPIFFIT in association with the Claim, or reached through a negotiated settlement of the Claim.
  • 9.5 In order to receive indemnification under this Section, the party seeking indemnification must promptly notify the other party of the assertion of the Claim; allow the other party to retain sole and exclusive control over the defense and/or settlement of the Claim; and cooperate with the other party, at the other party’s expense, in the defense and/or settlement of the Claim. This Section sets forth each party’s sole indemnification obligations and indemnification remedies in association with the Claims described above.

10. Fees and Payments.

  • 10.1 Client will pay SPIFFIT the license fees and technical support services fees set forth above. Client shall be charged a late fee of one and a half percent (1.5%) per month on all overdue amounts for any fees due and payable under this Agreement. Client shall pay all taxes arising out this Agreement, except for those based on SPIFFIT’s income.
  • 10.2 Client may acquire additional licenses to the Spiffit Works through the execution of agreed-upon Schedules to this Agreement. Unless otherwise specified in such additional Schedules, the terms of this Agreement shall apply to all Schedules executed between the parties.

11. Term and Termination.

  • 11.1 This Agreement is effective on the date last signed by the parties (the “Effective Date”) and continues until terminated in accordance with this Agreement.
  • 11.2 Each party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after its receipt of written notice of such breach from the non-breaching party.
  • 11.3 Upon termination of this Agreement by SPIFFIT under Section 11.2, Client shall immediately:
    • a. discontinue all use of the Spiffit Works and Documentation
    • b. de-install and/or remove any and all copies of the Spiffit Works, whether authorized or unauthorized, from any computer or server upon which the Spiffit Works has been installed by or on behalf of Client; and
    • c. return the all copies of the Spiffit Works, Documentation and all other materials to SPIFFIT.
  • 11.4 Upon termination of this Agreement by Client under Section 11.2, Client’s rights to use the Spiffit Works and Documentation shall continue in effect subject to:
    • a. Client’s continued compliance with all of the terms of this Agreement; and
    • b. SPIFFIT’s right to terminate Client’s rights to use the Spiffit Works and Documentation under the terms of Section 11.2 as the result of an uncured material breach of this Agreement.
  • 11.5 All provisions of this Agreement regarding ownership, indemnification, non-solicitation, and limitations of liability shall survive any termination of this Agreement.

12. Limitation of Liability.

  • 12.1 Except as in association with:
    • a. each party’s indemnification obligations under this Agreement;
    • b. a party’s violation of the other party’s intellectual property rights; and/or
    • c. a party’s breach of its confidentiality obligations under this Agreement; in no event shall either party be liable to the other party, regardless of the form of action or theory of recovery, in association with this Agreement or the Spiffit Works for: (1) any indirect, special, exemplary, consequential, incidental or punitive damages, even if that party has been advised of the possibility of such damages; (2) lost profits, lost revenue, lost business expectancy, benefit of the bargain damages, business interruption losses or loss of data; or (3) direct damages in an amount in excess of all of the fees paid to SPIFFIT under this Agreement during the twelve (12) month period immediately preceding the event giving rise to the dispute.
  • 12.2 Except for claims arising out of a party’s indemnification obligations, any claim arising out of, or related to, this Agreement must be initiated within one (1) year of the date the party knew, or reasonably should have known, of the existence of such claim against the other party.

13. Non-Solicitation. Neither SPIFFIT nor Client shall hire, solicit for hire or seek to engage the services of, nor offer to pay commissions, compensation or any other form of incentives to the employees or consultants of the other party without the prior express written consent of the other party, which may be withheld in that party’s sole discretion. This Section shall expire twelve (12) months after the termination of this Agreement.

14. General.

  • 14.1 This Agreement, all Schedules, and all amendments thereto contain the entire understanding of the parties with respect to the subject matter addressed herein and supersede, replace and merge all prior understandings, promises, representations and agreements, whether written or oral, relating thereto. This Agreement may not be modified except by a writing signed by both parties. No terms or conditions of either party’s invoice, purchase order or other administrative document shall modify the terms and conditions of this Agreement, regardless of the other party’s failure to object to such form. The remedies accorded SPIFFIT under this Agreement are cumulative and in addition to those provided by law.
  • 14.2 Any waiver of a party’s right or remedy related to this Agreement must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of this Agreement
  • 14.3 This Agreement shall be governed by the laws of the State of Colorado (exclusive of its choice of law rules), and the federal laws of the U.S.
  • 14.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect.
  • 14.5 All notices must be in writing and sent either by hand delivery; messenger; certified mail, return receipt requested; overnight courier; or by facsimile or by e-mail (with a confirming copy) and shall be effective when received by such party at the address listed herein or other address provided in writing.
  • 14.6 Client may not assign or sublicense this Agreement, in whole or in part, without SPIFFIT’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment or sublicense without such written consent shall be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

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