These Terms and Conditions (collectively, “Terms”)govern the sale and provision of products and services (“Products andServices”) by Root Four Imagination, Inc. (“Root Four”) to thepurchaser (“Customer”) and apply to any order submitted by Customer andaccepted by Root Four. Root Four and Customer may be referred to individuallyas a “Party” and collectively as the “Parties.” These Terms areincorporated by reference into and form part of any purchase order submitted byCustomer (“Purchase Order”) and accepted by Root Four. By submitting a PurchaseOrder, Customer acknowledges and agrees to be bound by these Terms.
1. Products and Services. Root Four shall provide Customer Productsand Services in accordance with these Terms. The scope and pricing of Productsand Services shall be as set forth in the applicable Purchase Order submittedby Customer and accepted by Root Four. Any document, terms, or conditionsprovided by Customer that alter, change, modify, amend, contradict, add to, orsubtract from these Terms are hereby rejected by Root Four and shall be of noforce or effect unless expressly agreed to in writing by Root Four.
2. Independent Contractor. Root Four is an independent contractor andnot an agent or employee of Customer. Root Four has sole discretion todetermine when and how it will provide Products and Services to Customer, aswell as the methods and techniques necessary thereto. Nothing herein isintended to preclude Root Four from providing Products and Services to otherparties.
3. Root Four Representations andWarranties. Root Four represents andwarrants as follows:
a. Root Four holds all licenses, permits,and consents necessary to provide the Products and Services;
b. Root Four will comply with allapplicable laws related to the Products and Services;
c. The provision of Products and Servicesby Root Four to Customer does not violate or infringe upon the rights of anythird party, including any intellectual property rights;
d. RootFour shall provide Products and Services in a good, professional, timely, andworkmanlike manner that conforms with applicable industry standards and laws.Products and Services shall be provided by qualified personnel with skill andexperience levels commensurate with the services to be provided, and Root Fourshall furnish, at its sole expense, all labor, materials, equipment, andsupervision necessary to provide the Products and Services to Customer.
4. Fees and Payment. The fees for the Products and Services (the “Fees”)shall be as set forth in the applicable Purchase Order submitted by Customerand accepted by Root Four. Root Four shall invoice Customer for the Fees, andCustomer shall pay the Fees upon receipt of the invoice in U.S. currency. Feesare exclusive of any taxes, and Customer is responsible for the payment of alltaxes applicable to the Products and Services provided, including sales tax,transaction privilege tax, value added tax, goods and services tax, or anysimilar tax. If Customer is required by law to withhold or deduct any taxesfrom its payment to Root Four, Customer shall provide Root Four with anofficial tax receipt or other appropriate documentation to support suchwithholding. The Parties shall cooperate to accurately determine and minimize,to the extent commercially reasonable, their respective tax responsibilities.Payments not received by Root Four when due shall incur interest until paid atthe lower of (a) one and one-half percent per month, or (b) the highestinterest rate permitted by law.
5. Cancellation and PaymentObligations. Once a Purchase Orderis submitted by Customer and accepted by Root Four, it may not be cancelled,modified, or withdrawn without the prior written consent of Root Four. In theevent Customer breaches these Terms, Root Four shall be entitled to recover allFees for Products and Services provided up to the date of breach, including anyapplicable costs, expenses, or damages resulting from such breach. All paymentobligations and any provisions which by their nature should survive shallremain in full force following delivery or breach.
6. Restrictive Covenants.
a. ConfidentialInformation. “ConfidentialInformation” means all confidential, financial, proprietary and trade secret information and datathat is furnished to or otherwise acquired by a Party, or such Party’s owners,directors, officers, managers, employees, contractors and agents (collectively,along with the Party, the “Recipient”), from the other Party or itsRepresentatives (collectively, along with the Party, the “Discloser”),regarding Discloser or its business including, without limitation, its plans,reports, programs, software, source code, manuals, studies, drawings,photographs, charts, algorithms, models, specimens, specifications, customers,employees, contractors, accounts, marketing information, pricing policies, costinformation, operations, and other information concerning Discloser’s businessand practices, in oral, visual, written, electronic or other tangible orintangible form, whether or not marked or designated as “confidential,” and allnotes, analyses, summaries and other materials prepared by Recipient thatcontain, are based on or otherwise reflect, to any degree, any of theforegoing. Confidential Information does not include any information that: (i)is or becomes generally available to the public other than as a result ofRecipient’s act or omission; (ii) is obtained by Recipient on anon-confidential basis from a third party that was not legally or contractuallyrestricted from disclosing such information; (iii) was in Recipient’spossession prior to Discloser’s disclosure; or (iv) was or is independentlydeveloped by Recipient without reference to or using any ConfidentialInformation. If Recipient is required by applicable law to disclose anyConfidential Information, Recipient shall, prior to such disclosure, notifyDiscloser of such requirements to the extent legally permissible so thatDiscloser may seek a protective order or other remedy, and Recipient shallreasonably assist Discloser therewith. If Recipient remains legally compelledto make such disclosure, it shall: (i) only disclose that portion of theConfidential Information that Recipient is required to disclose; and (ii) usereasonable efforts to ensure that such Confidential Information is afforded confidentialtreatment. As provided by federal law (18 U.S.C.§1833), neither Party shall beheld criminally or civilly liable under any Federal or State trade secret lawfor his/her disclosure of a trade secret that is made by him/her: (a) inconfidence to a Federal, State, or local government official, either directlyor indirectly, or to an attorney, and solely for the purpose of reporting orinvestigating a suspected violation of law; or (b) in a complaint or otherdocument filed by a Party in a lawsuit or other proceeding, on the conditionthat such filing is made under seal.
b. Non-Disclosure ofConfidential Information. The Discloser may disclose ConfidentialInformation to the Recipient, or Recipient may otherwise receive access toDiscloser’s Confidential Information. Recipient shall use the ConfidentialInformation solely in connection with its performance or exercise of rightsunder these Terms and shall not disclose or permit access to ConfidentialInformation other than to its Representatives who need to know suchConfidential Information to assist Recipient in performing its obligationshereunder. Recipient shall safeguard the Confidential Information fromunauthorized use, access or disclosure using at least the degree of care ituses to protect its own Confidential Information and no less than a reasonabledegree of care. Recipient shall as soon as practicable notify Discloser of anyunauthorized use or disclosure of Confidential Information and use commerciallyreasonable efforts to prevent further use or disclosure. Each Party shall causeits Representatives receiving or having access to Confidential Information ofthe other Party to comply with the terms and conditions herein and will beresponsible for any breach caused by its Representatives.
c. Private Information. Each Party acknowledges that it has received,may receive, or may have access to consumer, customer, or individualinformation (“Private Information”), which information may be subject tothe protections of international, federal, state and/or local privacy, dataprocessing and transfer, safeguards, or information security laws, and each Partyfurther agrees, warrants, and represents that it has complied and will complywith all requirements imposed by such laws. All Private Information shall bedeemed Confidential Information and shall be subject to the confidentialityprovisions set forth in these Terms.
d. License to Use Statistical Data. Without limiting the confidentiality andintellectual property rights and protections set forth in these Terms, eachParty grants to the other Party and its respective affiliates and subsidiariesa perpetual, non-exclusive, worldwide license to use aggregated, anonymized,and de-identified statistical data (collectively, “Statistical Data”)derived from Customer’s receipt and use of the Products and Services. Thelicense to use Statistical Data is subject to the following:
i. For purposes of these Terms, “aggregated data” means data resulting from the combination or analysis of information from multiple individuals such that the results do not contain information about any identifiable individual and cannot be used to reconstruct information about any identifiable individual (“AggregatedData”); “anonymized data” means data that has been permanently altered or aggregated to a degree that no specific individual can be identified from the data, whether alone or in combination with any other information, according to generally accepted anonymization practices (“Anonymized Data”); and“de-identified data” means data that has been processed to remove or obscure personal identifiers such that it no longer allows for direct identification ofan individual but may still allow for re-identification under certain circumstances if combined with additional data sets (“De-identified Data”).
ii. Each Party may compile, use, and discloseAnonymized Data and Aggregated Data for any lawful business purpose, including but not limited to product development, analytics, reporting, and improvement of services, provided that such data is maintained in an Anonymized Data orDe-identified Data state and cannot reasonably be used to identify any individual. The Parties acknowledge that under applicable privacy laws, data that is duly De-identified Data or Aggregated Data such that individuals are not identifiable is not considered personal information and may be used freely.
iii. Each Party may disclose Anonymized Data to third parties or affiliates for legitimate business purposes, such as industry benchmarking or research, provided that such data remains in Anonymized Data orAggregated Data form. Neither Party shall attempt to re-identify any individuals from such shared Anonymized Data or Aggregated Data.
iv. Each Party shall apply administrative, technical, and physical security measures to De-identified Data comparable to those used to protect personal data, to ensure it remains De-identified Data.Reasonable measures must be taken to prevent re-identification, including but not limited to the removal of unique identifiers, data aggregation, masking, and other privacy-enhancing techniques. Each Party shall regularly assess the risk of re-identification and update safeguards as necessary to keep pace with technological and data-processing advancements.
e. Survival. The non-disclosure and non-use provisions of these Terms shall survive the expiration or termination of these Terms: (a) in respect of Confidential Information that constitutes a trade secret, for so long as such Confidential Information remains a trade secret under applicable law, and (b) in respect of all other Confidential Information, for a period of two (2) years.
f. Non-Solicitation. Customer shall not, during the pendency of and for one (1) year following the completion of the Products and Services, either directly or indirectly, for itself or any third party: (1) solicit or have any contact with any Root Four customers, or otherwise divert or attempt to divert any Root Four customers to any other person, entity, or business providing similar Products and Services; or (2) solicit, induce, recruit, or cause any Root Four employee or contractor to terminate their relationship withRoot Four for the purpose of joining, associating, or becoming employed or contracted by Customer.
g. Injunctive Relief. A Party shall be responsible for any breach of subparts (a) through (d) of this Section 6 by any of such Party’sRecipients. Customer shall be responsible for any breach of subpart (f) of thisSection 6 by any Customer Recipients. In the event of a breach or threatened breach by a Party’s Recipient of any of subparts (a) through (d) of this Section 6, in addition to any and all other remedies available toDiscloser under law or in equity, Discloser shall be entitled to injunctive relief, plus all costs incurred by Discloser attributable to pursuing such remedies, including, without limitation, reasonable attorney and accountant fees and costs, and costs and fees of litigation. If Customer breaches or there is a threatened breach by any Customer Recipient of subpart (f) of this Section6, in addition to any and all other remedies available to Root Four at law or in equity, Root Four shall be entitled to injunctive relief, plus all costs incurred by Root Four attributable to pursuing such remedies, including, without limitation, reasonable attorney and accountant fees and costs, and costs and fees of litigation.
7. Intellectual Property Ownership.
a. Intellectual Property Rights Defined. “IntellectualProperty Rights” means any and all intellectual property rights existing under any laws, including patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law (together with all of the goodwill associated therewith), unfair competition law, publicity rights law, or privacy rights law, other proprietary rights, and applications, renewals, extensions, and restorations of any of the foregoing, now or hereafter in force or effect worldwide.
b. Root Four Technology Defined. “RootFour Technology” means at any time all Intellectual Property Rights associated with the software, firmware, and hardware comprising any of Root Four’s vehicle communication, diagnostic, repair, and telematic applications and devices, and all developments, modifications, or derivatives thereof, provided or developed by Root Four or Root Four’s affiliates, or otherwise.
c. Title And Ownership of Root FourTechnology. Root Four Technology, and title thereto and ownership thereof, is and shall remain the sole and exclusive property of Root Four, subject to any licenses held by or granted to Root Four from OEMs or other third parties.
8. License. Root Four grants to Customer a non-exclusive, non-transferable, non-sublicensable license, limited to the United States ofAmerica and Canada, (1) to use the Root Four Technology in association withCustomer devices for the limited purpose of creating, promoting, and selling vehicle condition reports to Customer’s customers, and (2) to display, sell, distribute, or otherwise use the information, including codes, recall notices, technical service bulletins (TSBs), and repair suggestions, received from theBlueDriver platform for the limited purpose of creating, promoting, and selling vehicle condition reports and providing related services to Customer’s customers. Except as expressly permitted in these Terms, Customer shall not reverse engineer, decompile, retain, copy, compile, or otherwise utilize any data comprising and/or provided by the Root Four Technology. The license granted under this Section 8 shall automatically terminate upon completion of the applicable order, or earlier if Customer breaches theseTerms.
9. Infringement. Each Party agrees to provide notice to the other Party as soon as practicable of any alleged infringement of theIntellectual Property Rights of either Party arising from or related to theProducts and Services provided by Root Four to Customer, and of any available evidence thereof, of which it becomes aware. If any such Products or Services are alleged to infringe on a third party’s Intellectual Property Rights, RootFour, in its sole discretion, may, and in the case of an injunction shall be obligated to, at its own expense, either: (a) procure for Customer the right to continue using the infringing Product or Service; (b) replace the infringingProduct or Service with a non-infringing alternative that performs substantially the same functions at no cost to Customer; (c) modify the infringing Product or Service so that it no longer infringes and substantially performs the same functions; or (d) if none of the foregoing remedies are commercially feasible, remove the allegedly infringing Product or Service and cease delivery of such. Customer shall remain responsible for all Fees incurred for its use of any such Product or Service up to and including the date it becomes aware of the alleged infringement. Root Four shall not be liable for any claim of infringement to the extent such claim arises from: (i)modification of the Products or Services by Customer or at Customer’s direction, or (ii) use of the Products or Services in combination with any hardware, software, data, or processes not provided by Root Four, if such claim would not have arisen but for such modification or combination.
10. Limitation ofLiability and Consequential Damages. Under no circumstances shall Root Four be liable to Customer for damages exceeding the Fees paid by Customer to Root Four for the specific Products and Services giving rise to the claim. Except with respect to any claim for fraud or indemnification under these Terms, and to the extent permitted by law, in no event shall either Party be liable to the other Party for any indirect, special, incidental, exemplary, punitive, or consequential damages.
11. Indemnification. Customer shall hold harmless, indemnify, and defend Root Four and its owners, directors, officers, managers, employees, contractors, agents, successors, and assigns(collectively, “Root Four Representatives”) (together with Root Four, the “Root Four In demnitees”) from and against all claims, actions, suits, demands, judgments, orders, rulings, decrees, losses, liabilities, damages, interest, fines, penalties, costs, and expenses (including attorney fees, accounting fees, investigation costs, and litigation costs, to the extent permitted by law) that may be brought against any of the Root Four In demnitees by or in favor of a third party arising from or related to any breach byCustomer or any of its owners, directors, officers, managers, employees, contractors, agents, successors, or assigns (collectively, “CustomerRepresentatives”) of these Terms or any obligations of Customer hereunder.
12. Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS-IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY,ASSURANCE, CONDITION, OR DUTY REGARDING THE FUNCTIONALITY, SECURITY, OR AVAILABILITY OF THE PRODUCTS AND SERVICES, OR THAT PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR MALICIOUS CODE. TO THE EXTENT PERMITTED BY APPLICABLE LAW,ROOT FOUR DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE(WHETHER OR NOT ROOT FOUR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OF, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). ROOT FOUR FURTHER DISCLAIMS ANYAND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE ANDNON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ROOT FOUR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS OF OR PERFORMED BY THE PRODUCTS OR SERVICES WILL MEET AN ENDUSER’S REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS AND SERVICES WILL BE ERROR-FREE, OR THAT ALL DEFECTS IN THE PRODUCTS AND SERVICES WILL BE CORRECTED.IT IS THE OBLIGATION AND RESPONSIBILITY OF CUSTOMER TO INDEPENDENTLY VERIFY BEFORE USE OR RELIANCE THEREON OF ALL INFORMATION AND DATA PROVIDED CUSTOMER THROUGH CUSTOMER’S USE OF THE PRODUCTS AND SERVICES.
13. Force Majeure. Root Four shall not be held liable to Customer, or be deemed to have defaulted under or breached these Terms, for failure or delay in fulfilling or performing any term or condition to the extent, and for so long as, such failure or delay is caused by or results from severe weather conditions, earthquake, fire, floods, embargoes, trade wars, war, acts of war (whether war is declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts, labor disturbances, omissions or delays in acting by any governmental authority or Customer, or acts of God (collectively, “Force Majeure”). If by reason of Force Majeure, Root Four is not reasonably able to fulfill an obligation under theseTerms, Root Four shall: (a) notify Customer as soon as practicable of suchForce Majeure, providing reasonably full particulars; (b) be relieved from fulfilling such obligation during the continuance of such Force Majeure; and (c)as soon as practicable after the cessation of such Force Majeure, provideCustomer notice of such cessation and fulfill or resume fulfilling its obligations.
14. Completion and Final Customer Support. Upon completion of the Products andServices, or if Root Four discontinues delivery due to Customer’s breach of these Terms, Root Four shall reasonably cooperate with Customer to: (a) return any Customer Confidential Information in Root Four’s custody, (b) respond to reasonable requests for final information or documentation, and (c) allowCustomer to complete its use of any Products or Services already delivered, subject to the license and restrictions set forth in these Terms.
15. Insurance. Root Four shall maintain adequate liability insurance coverage for its operations and the provision of the Products andServices, including, without limitation: (a) statutory workers’ compensation insurance; (b) employer’s liability insurance with limits not less than$500,000; (c) general liability insurance (including contractual and completed operations coverage) with limits not less than $1,000,000 per occurrence and$2,000,000 aggregate; (d) environmental liability with limits not less than$500,000 per occurrence and $1,000,000 aggregate; (e) automobile liability insurance (including non-owned automobile coverage) with limits not less than$500,000; (f) excess liability coverage (occurrence-based) with limits not less than $1,000,000; (g) cyber liability insurance with limits not less than$1,000,000; and (h) crime/fidelity/employee dishonesty insurance with limits not less than $500,000. All policies shall contain a waiver of subrogation in favor of Customer and name Customer as an additional insured on a primary and non-contributory basis, as applicable. Upon request, Root Four shall provideCustomer with certificates of insurance evidencing the required coverages.
16. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS.
17. Miscellaneous. These Terms and all matters arising out of or relating to them shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles (whether of the State of Texas or any other jurisdiction). Each Party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in Collin County, Texas, in any suit, action, or proceeding arising out of or relating to these Terms, and waives any objection to such venue andjurisdiction, including objections based on inconvenient forum. These Termsshall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign theseTerms or any of its rights or duties hereunder without the other Party’s prior written consent; provided, however, that Root Four may assign these Terms without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets or equity. If any provision of these Terms is held to be invalid, illegal, or unenforceable in any jurisdiction, such determination shall not affect the validity or enforceability of the remaining provisions of these Terms or affect the validity or enforceability of such provision in any other jurisdiction. Upon such a finding, the Parties shall negotiate in good faith to modify these Terms to reflect their original intent as closely as possible. No waiver of any provision of these Terms shall be deemed a continuing waiver or a waiver of any other provision. No failure or delay in exercising any right, remedy, power, or privilege shall operate as a waiver thereof, and no single or partial exercise of any right shall preclude any other or further exercise of that right or any other right. All rights and remedies under these Terms are cumulative and may be exercised concurrently or separately. These Terms shall not be interpreted against the drafter. The prevailing Party in any dispute or legal action arising out of or relating to these Terms shall be entitled to recover its reasonable attorney and accountant fees, and other costs and expenses incurred in connection with such action.
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