SERVICE TERMS FOR DEALERCENTER SERVICES

Last Modified: October 21, 2019

The following Service Terms apply only to the specific Services to which the Service Terms relate. In the event of a conflict between the terms of these Service Terms and the General Terms or other agreement with us governing your use of our Services, the terms and conditions of these Service Terms apply, but only to the extent of such conflict. Capitalized terms used herein but not defined herein shall have the meanings set forth in the General Terms.

  1. DealerCenter Dealer Management System (DMS), DealerCenter Customer Relationship Management (CRM), DealerCenter Compliance, DealerCenter Credit Bureaus
    1. Gramm-Leach-Bliley Compliance
      1. The Federal Trade Commission has issued standards for safeguarding customer information (16 C.F.R. Parts 314) (the “Safeguards Rule”) pursuant to the GRAMM-LEACH-BLILEY ACT of 1999 (GLBA). This Safeguards Rule requires Subscribers that are regulated by the GLBA to take steps to select and retain service providers that can maintain appropriate safeguards for Customer Information and to bind these providers by contract to implement and maintain such safeguards.
      2. As your service provider, Nowcom agrees that the following terms will apply to Subscribers that are regulated by the GLBA. To allow such Subscriber to meet its obligations under the Safeguards Rule, Nowcom agrees:
        1. To hold all Customer Information (defined below) in strict confidence and not to use or to disclose Customer Information to a non-affiliated third party, except as directed or authorized by Subscriber or an Authorized User. If it becomes necessary to disclose Customer Information to a non-affiliated third party to fulfill Nowcom’s obligations Subscriber without prior direction or authorization of Subscriber or an Authorized User, Nowcom will obtain Subscriber’s written permission before doing so. If Nowcom is required by law to disclose Customer Information to a third party, Nowcom will, to the extent permitted by law, notify Subscriber prior to making the disclosure to provide Subscriber an opportunity to contest the disclosure with the appropriate authorities.
        2. To restrict access to Subscriber’s Customer Information only to Nowcom or its affiliates’ employees, agents, or representatives (“Employees”) who have a need to know the information to perform their jobs;
        3. To implement and maintain an information security program that consists of reasonable administrative, technical, and physical safeguards necessary to ensure Customer Information is safe from loss, theft, unauthorized access, copying, modification, use or disclosure during use, transmission or storage;
        4. To promptly report to Subscriber any actual or suspected breach of the confidentiality or security of any Customer Information along with any information reasonably necessary for Subscriber to determine the nature of the breach;
        5. To allow Subscriber to review and assess Nowcom’s information security program, and, to make requests for reasonable changes to Nowcom’s information security program to ensure Nowcom is capable of maintaining safeguards that are appropriate for the Customer Information at issue;
        6. At Subscriber’s request, to destroy all Customer Information in Nowcom’s possession and certify to Subscriber that Nowcom has done so. Nowcom agrees to destroy Customer Information using commercially reasonable, secure methods accepted by industry standard;
        7. If Nowcom uses third parties to help provide services to Subscriber, to first require those third parties to agree in writing to provide the same protections set forth in this Agreement;
      3. The term Customer Information used in this Section 1.1 is information that belongs to Subscriber which includes “customer information,” as defined in 16 CFR §314.2(b), as well as any information that identifies a consumer and information from which a consumer’s identity can be ascertained, either from the information itself or by combining the information with information from other sources. Examples of Customer Information include the Subscriber’s copy of a consumer’s name, address, social security number, loan numbers, account numbers, loan balances, credit report information, application information, driver’s license number, identification number, etc.
    2. California Consumer Privacy Act – Service Provider Compliance
      1. The State of California has enacted the California Consumer Privacy Act (CCPA) providing consumers with certain rights related to the collection and use of their Personal Information (defined below). The CCPA requires Subscribers that are regulated by the CCPA to take steps prevent the transfer of covered Personal Information to Nowcom to be deemed as “sold”, as defined by the CCPA.
      2. As a service provider for Subscriber, Nowcom and Subscriber agree that the following terms will apply to Subscribers that are regulated by the CCPA. To allow such Subscriber to meet its obligations under the CCPA:
        1. Subscriber agrees that it will provide notice that information is being used or shared in its terms and conditions consistent with the requirements of the CCPA, as required under Cal Civ Code §1789.140 (t)(2)(C)(i).
        2. Nowcom agrees that it does not further collect, sell, use, retain, or disclose the covered Personal Information except as necessary to perform the specific business purpose of the Service(s) or as otherwise permitted by the CCPA.
        3. Nowcom agrees that it will use commercially reasonable effort to assist such covered Subscribers to meet is obligations under the CCPA with respect to covered Personal Information related to (i) fulfilling any valid deletion requests; and (ii) assisting with valid access requests, including providing a copy of the covered Personal Information held in a Service in a portable and readily usable format.
      3. The term Personal Information used in this Section 1.2 is information that belongs to Subscriber which includes “personal information,” as defined in Cal Civ Code §1798.140(o)(1).
    3. Death Master File Notice
      1. Access to the Death Master File as issued by the Social Security Administration requires an entity to have a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule regulation, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1).
      2. The National Technical Information Service has issued the Interim Final Rule for temporary certification permitting access to the Death Master File (“DMF”). Pursuant to Section 203 of the Bipartisan Budget Act of 2013 and 15 C.F.R. § 1110.102, access to the DMF is restricted to only those entities that have a legitimate fraud prevention interest or a legitimate business purpose pursuant to a law, governmental rule regulation, or fiduciary duty, as such business purposes are interpreted under 15 C.F.R. § 1110.102(a)(1). As many Nowcom Services contain information from the DMF, Nowcom would like to remind you of your continued obligation to restrict your use of deceased flags or other indicia within the Services to legitimate fraud prevention or business purposes in compliance with applicable laws, rules and regulations and consistent with your applicable Fair Credit Reporting Act (15 U.S.C. §1681 et seq.) or Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) use. Your continued use of the Services affirms your commitment to comply with these terms and all applicable laws.
      3. You acknowledge you will not take any adverse action against any consumer without further investigation to verify the information from the deceased flags or other indicia within the Services.
    4. Legal Compliance
      1. Subscriber acknowledges that Nowcom’s personnel are not financial experts, attorneys, accountants, or experts on the applicable laws of any state. Nowcom personnel may consult with Subscriber and/or Authorized Users and provide recommendations and assistance, but Subscriber is solely responsible for compliance with any applicable laws, regulations, and professional standards. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Subscriber or sound business practice to:
        1. use any interest rate, tax rate, calculation, formula, pricing, disclosure, description, discount, advertising method and content, (collectively “Business Practices”), or
        2. use any form documents, such as window stickers, disclosures, warranties, contracts, credit applications, tax documents or vehicle registration forms provided by Nowcom for use in connection with the Service (“Forms”), whether generic, standard Forms, Third-Party Content Forms, or Forms that have been customized by Nowcom and/or Subscriber for Subscriber’s use.

        Nowcom provides Business Practice consultation and Forms as a convenience to customers but Subscriber is responsible for determining whether it is legal or appropriate to use any Business Practice or Form in Subscriber’s business, in unmodified or modified form. Nowcom is NOT liable for any claims whatsoever by Subscriber or any third party arising out of or related to the content or use of any Form or for following any recommendations on Business Practices. THE FINAL DECISION ABOUT ANY ASPECT OF SUBSCRIBER’S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH SUBSCRIBER’S USE OF THE FORMS AND BUSINESS PRACTICES AND USE OF THE SERVICE, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF SUBSCRIBER.

  2. DealerCenter Deal
    1. Buy Program Consent for Sharing and Use of Information
      1. We have made it easier for you to obtain more accurate terms for financing offers when running the Buy Program (defined below), but this requires that we share your Customer Information with one or more non-affiliated third parties. This sharing of information occurs when you have selected Westlake or Western Funding from the list of lenders on a deal within DealerCenter. If you do not have a relationship with Westlake or Western Funding or have not selected either of those lenders in DealerCenter, then the sharing described in this Section 2.1 will not occur.
      2. With your written permission and at no cost to you, prior to running the Buy Program, we may send your Customer Information to non-affiliated third parties in order to provide an automated assessment of the customer, including assessing potential fraud issues based on your Customer Information. The assessment returned by these third parties will be included in the criteria evaluated by the Buy Program for the purpose of determining the documentation requirements for a financing offer, or for the terms of the offer. The names of the third parties with which data will be shared shall be displayed in DealerCenter prior to the first time the data is shared, providing the Authorized User the opportunity to agree or decline on your behalf.
      3. Subscriber agrees that:
        1. it is providing written permission directing Nowcom to send its Customer Information to non-affiliated third parties in order to provide a more accurate assessment of the terms of the financing offer provided through the Buy Program;
        2. it authorizes any user in its account with security rights to run credit reports to grant or deny permission to Nowcom to share Customer Information;
        3. The direct result of the assessment will not be available to view or use and will be incorporated into the data evaluated by the Buy Program to return the terms of the financing offer, and all costs associated with the assessment are covered by the lender;
        4. Nowcom is not responsible for any services provided by third parties or the accuracy or availability of the data they provide;
        5. this information sharing consent will remain in effect until revoked or modified by either party;
        6. it will keep a copy of this Consent for Sharing and Use of Information for its own records.
      4. Subscriber may discontinue this information sharing at any time by not selecting Westlake or Western Funding from within DealerCenter or may revoke or modify this information sharing consent at any time by contacting your DealerCenter support representative at 888-669-2669 or [email protected].
      5. The term Buy Program as used in this Section 2.1 refers to the automated deal structure screening calculations provided by Westlake Services, LLC D/B/A Westlake Financial Services (“Westlake”) and/or Western Funding, Inc. (“Western Funding”) and accessible via DealerCenter.
      6. The term Customer Information as used in this Section 2.1 has the same meaning as this Section 1.1.
  3. DealerCenter CRM
    1. Telephone calls, Text Messaging, Email Messages and Call Recording
      1. Subscribers electing the CRM Service have the capability of using the Service for communicating via telephone, text messaging (SMS/MMS) and e-mail messaging, including recording such telephone calls, and directing text and email messages to send to selected recipients. Subscriber hereby warrants and represents that Subscriber, and Subscriber’s employees and agents, shall comply with any and all anti-spam and telemarketing laws and regulations including, without limitation, the CAN-SPAM Act and the Telephone Consumer Protection Act (TCPA), and any laws and regulations related to recording audio conversations. Subscriber agrees to obtain any necessary consent and to give any necessary notice of such audio recording to all relevant personnel.
  4. Dealer Websites
    1. Accessibility
      1. The Dealer Website Service consists of a public facing website with content administration functions whereby Subscriber and Authorized Users may change website content. Therefore, Nowcom cannot guarantee or ensure that the use of our Service is compliant with all accessibility laws and worldwide regulations. You are responsible for reviewing and complying with local legislation applicable to you or to your Dealer Website visitors.
    2. Subscriber’s Affirmative Covenants
      1. Subscriber agrees to:
        1. fully comply with all applicable laws and any other contractual terms which govern your use of the Services (and any related interaction or transaction), including those specific laws applicable to you or your Authorized Users in any of your geographical locations;
        2. be solely responsible and liable with respect to any of the uses of the Services which occur under its Account, and for any of the Customer Data (including for any consequences of accessing, importing, uploading, copying, using or publishing such Content on or with respect to the Services);
    3. Subscriber’s Negative Covenants
      1. Subscriber agrees not to:
        1. submit, transmit or display any Customer Data, or use Service Data in a context, which may be deemed as defamatory, libelous, obscene, harassing, threatening, incendiary, abusive, racist, offensive, deceptive or fraudulent, encouraging criminal or harmful conduct, or which otherwise violates the rights of Nowcom or any third party (including any intellectual property rights, privacy rights, contractual or fiduciary rights), or otherwise shows any person, entity or brand in a bad or disparaging light, without their prior explicit approval;
        2. use any illegal action to collect login data and/or passwords for other websites, third parties, software, or services;
        3. phish, collect, upload, or otherwise make available credit card information or other forms of financial data used for collecting payments, unless done in accordance with any applicable law, including, with the PCI-DSS standard, when applicable;
        4. upload, insert, collect, or otherwise make available within the Dealer Website or the Services (or any part thereof), any malicious, unlawful, defamatory, or obscene Content;
        5. publish and/or make any use of the Services or Service Content on any website, media, network or system other than those provided by Nowcom, and/or frame, “deep link”, “page scrape”, mirror and/or create a browser or border environment around any of the Services or Service Content, except as expressly permitted by Nowcom, in advance and in writing;
        6. upload to the Service or otherwise use them to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
  5. Buy Here Pay Here
    1. Additional Disclaimers
      1. Subscriber understands and agrees that Nowcom shall bear no risk with respect to Subscriber’s sales, products or services, including the making of loans and/or leases, without limitation, or any risk associated with Subscriber’s failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business, including charging and calculation of interest and finance charges, or any other regulatory requirements.
      2. Nowcom provides software products to customers that operate in many different regulated areas. Nowcom is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Subscriber or Authorized Users. The Service’s loan servicing feature has many features that allow you to manipulate loans, such as setting and changing the payment schedule and amounts, overriding Reg Z disclosures, changing due dates and tax amounts, adding fees and penalties, applying a payment deferral, modifying loan terms, selling accounts to third parties, and charge offs. It is SOLELY Subscriber’s responsibility and liability to ensure that its operations comply with law and regulation and that its disclosures are complete and accurate.
  6. Adverse Action Services
    1. Nowcom may generate, on Subscriber’s behalf, adverse-action letters to be transmitted to credit applicants (the “Adverse Action Services”). Subscriber acknowledges and agrees that all such Adverse Action Services are provided on Subscriber’s behalf and that Nowcom assumes no responsibility or liability whatsoever with respect to the provision or content of adverse-action letters or Subscriber’s compliance with the FCRA and all other applicable rules and regulations.
  7. AutoCheck® Services
    1. The following terms shall be applicable to all Subscribers electing to use AutoCheck Services (defined below):
      1. AutoCheck Services. Nowcom shall provide Subscriber with access to and use of vehicle information compiled by VIN derived from vehicle title, registration, service, accident, and other records to identify vehicle history, title brands, odometer readings, potential odometer discrepancies and other information as may be permitted by law or contract (“AutoCheck Services”). Subscriber shall only use the AutoCheck Services for evaluating vehicles for acquisition or marketing vehicles to potential consumer or wholesale buyers. Subscriber shall not resell the AutoCheck Services to any third party. Subscriber shall not represent that Nowcom or Experian warrants or otherwise certifies the quality or condition of any vehicle and Subscriber will not use the Experian or AutoCheck name or this relationship to make such a representation to its customers. Subscriber must have a commercially reasonable Internet security system, which Experian may review and audit in its discretion. Subscriber must not use the AutoCheck Services for any Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) purpose such as credit extension, insurance, employment or other purposes under Section 604 of the FCRA. Subscriber may not use the AutoCheck Services to evaluate creditworthiness.
      2. AutoCheck Fast Link. Nowcom shall make available vehicle history reports for those VINs in Subscriber’s used vehicle inventory to those online classified vehicle listing services with which both Subscriber maintains a listing relationship and at whose websites Experian maintains AutoCheck vehicle history report integration (“AutoCheck Fast Link”). Nowcom shall enable AutoCheck Fast Link unless Subscriber elects to disable this feature upon written notice. Subscriber acknowledges that the Fees shall apply when an AutoCheck vehicle history report is appended to a vehicle listed on an online vehicle listing website.
      3. Warranties. Nowcom warrants to Subscriber that Nowcom will use commercially reasonable efforts to deliver the AutoCheck Services in a timely manner. Nowcom compiles vehicle history reports from extensive, multiple sources in an effort to report on the history of the life of a vehicle relative to its VIN. Because it is not always possible for Nowcom to obtain complete discrepancy information on all vehicles, there may be other title brands, odometer readings or discrepancies that apply to a vehicle that are not reflected on that vehicle’s report. Nowcom searches data from additional sources where possible, but all discrepancies may not be reflected on the Report. These reports are based on information supplied by external sources believed to be reliable, BUT NO RESPONSIBILITY IS ASSUMED BY NOWCOM OR ITS AGENTS FOR ERRORS, INACCURACIES OR OMISSIONS. THE REPORTS ARE PROVIDED STRICTLY ON AN “AS IS WHERE IS” BASIS, AND NOWCOM FURTHER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THIS REPORT.
      4. Audit. Upon reasonable prior written notice, Nowcom and its service provider shall have the right to audit Subscriber’s use of the AutoCheck Services to assure compliance with the terms of the Agreement and these Terms of Use. Subscriber will be responsible for cooperating in connection with such audits and will provide or obtain for the auditing party access to such properties, records and personnel such party may reasonably require for such purpose.
  8. Bankers Systems Forms
    1. The following terms shall be applicable to all Subscribers electing to use documentation services known as the Bankers Systems Forms Service (the “Form” or “Forms”):
      1. For purposes of these terms of use, the term “Transaction” shall mean a retail installment sales transaction in which the Form documents for the transaction are prepared through the Service. If multiple sets of the documents are prepared to correct typographical errors or to make other minor changes under the same transaction number or other code assigned to each unique transaction, the multiple sets shall constitute one Transaction. The documents need not be executed by the consumer for the retail sales transaction to be a Transaction.
        1. Subscriber shall be charged a document fee for every ten (10) sets of documents printed per Transaction;’..
        2. Subscriber shall not grant access to the Forms to anyone other than authorized employees of Subscriber.
        3. The Forms may only be completed through the Service.
        4. The Forms may not be downloaded, uploaded, printed, or otherwise stored, reproduced, or used outside the Service.
        5. Except for photocopying, downloading, or printing of completed Forms, Subscriber shall not use or reproduce any of the Forms except through the Service.
        6. THE FORMS ARE PROVIDED AS IS, AND NOWCOM AND ITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED, BY DESCRIPTION, BY SAMPLE OR OTHERWISE, AND IN PARTICULAR WITHOUT LIMITATION, MAKES NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF PURPOSE. NOWCOM AND ITS LICENSORS DO NOT EXPRESSLY WARRANT OR GUARANTEE THE UTILITY OR LEGALITY OF ANY OF THE FORMS PROVIDED. SUBSCRIBER MUST MAKE ITS OWN INDEPENDENT DETERMINATION REGARDING THE UTILITY AND LEGALITY OF EACH OF THE FORMS.
  9. Black Book® National Auto Research Database
    1. The following terms shall be applicable to all Subscribers electing to use or Subscribe to the Black Book® National Auto Research Database Service (the “Database” for the purposes of this section).
      1. Subscriber shall comply with all of the following terms of use of the Database as a condition of accessing the Database:
        1. Subscriber acknowledges that the Database and the Black Book® logo are protected by Copyright © 2007 Hearst Business Media Corp. ALL RIGHTS RESERVED. Black Book® is a registered trademark of Hearst Business Corporation (“Licensor”). REPRODUCTION OF THE TRADE NAME AND OR CONTENTS OF THE DATABASE IN WHOLE OR IN PART, IN ANY FORM BY ELECTRONIC OR MECHANICAL MEANS INCLUDING INFORMATION STORAGE AND RETRIEVAL SYSTEMS IS STRICTLY PROHIBITED. THE DATABASE IS PROVIDED “AS IS” AND NOWCOM AND ITS LICENSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASE IS COMPILED, THAT THE DATABASE IS FREE FROM ERRORS AND OMISSIONS, AND THE MERCHANTABILITY AND FITNESS OF THE DATABASE FOR A PARTICULAR PURPOSE OR USE OR THE PERFORMANCE OR RESULTS OBTAINED BY USING THE DATABASE. NATIONAL AUTO RESEARCH HAS BEEN DILIGENT IN PROVIDING ACCURATE AND COMPLETE INFORMATION, HOWEVER, THE DATABASE IS PROVIDED “AS IS” AND NATIONAL AUTO RESEARCH PROVIDES NO WARRANTIES EXPRESS OR IMPLIED.
        2. Subscriber shall not, and shall not allow others to, directly or indirectly (i) disassemble, decompile, reverse engineer or otherwise modify or alter, enhance, customize the Database (i.e. either by addition, deletion, augmentation, change or otherwise); (ii) copy or reproduce in any form or medium all or any part of the Database; (iii) create any derivative work from, or adaptation of the Database; (iv) assign, transfer, market, lease, license, sell, or otherwise publish, communicate, distribute or display to third parties or utilize in any form or medium all or any part of the Database; (v) create any vehicle valuation guides, directories or services, in whole or part on the data from the Database; (vi) download the Database to PCs or any other computer or electronic device, store the Database in a retrieval system; (vii) establish a network for use of the Database, provide database services to any third party, or (viii) transmit, in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, in whole or in part, the Database and associated user documentation consisting of a record layout.
        3. Nowcom hereby grants Subscriber a personal, non-transferable and non-exclusive limited license to use the Solution consisting of a compilation of various modules of the Solution combined with NAR’s proprietary database consisting of fifteen model years of information relating to the vehicle identification number, model year, make, model, series and body style, universal vehicle code, engine descriptions, extra clean, clean, average and rough retail value, loan value, MSRP and extra clean, clean, average and rough wholesale United States pricing information for used cars, vans and light trucks (the “Database”) and further grants to Subscriber a personal, nontransferable and nonexclusive limited sublicense to use the Database within the Solution under a license granted by National Auto Research Division, Hearst Business Media Corporation’s (“NAR”) to Subscriber. NAR is a third party beneficiary under this Agreement and may enforce its rights hereunder directly against Subscriber, which shall be governed by the laws of the State of New York without giving effect to any principles of conflict of laws and subject to the jurisdiction and venue of the State and Federal courts located in New York.
        4. Subscriber is only authorized to use the Database to access the Database within the Solution for the purpose of retrieving values on a vehicle by vehicle look-up basis or on a multiple vehicle basis as a batch process for its own internal inventory analysis purposes for inventory valuation and inventory management processes for those vehicles within its used car inventory.
        5. Subscriber agrees that NAR owns all rights, title and interest in and to the Database, and any derivative works thereof, including but not limited to all literary property rights, copyrights, trademarks, trade secrets, trade names or service marks, including goodwill and all rights, title and that all rights, title and interest shall remain with NAR and use of the Database by Subscriber or any information therein by any person or firm other than Subscriber’s or its employees (on a need to know basis) is prohibited by NAR. Subscriber shall keep confidential the Database or any information therein and use its best efforts to prevent and protect the contents of the Database from unauthorized disclosure, copying or use. The Database is protected by copyright, registered U.S. Patent Office Reg. No. 767893.
        6. ALTHOUGH NAR MAY COMPILE THE DATABASE CONTAINED WITHIN THE SOLUTION, NAR DOES NOT WARRANT THE SOLUTION OR THE CONTENTS THEREIN. THEREFORE, THE DATABASE IS PROVIDED “AS IS” AND NAR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASE IS COMPILED, THAT THE DATABASE IS FREE FROM ERRORS AND OMISSIONS, THE MERCHANTABILITY AND FITNESS OF THE DATABASE FOR A PARTICULAR PURPOSE, OR USE, OR PERFORMANCE OR RESULTS OBTAINED BY USING THE DATABASE WITHIN THE SOLUTION. UNDER NO CIRCUMSTANCES SHALL NAR BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, ALL OTHER COMMERCIAL DAMAGES OR LOSSES IN CONNECTION WITH THE DATABASE. NAR EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOLUTION, AND SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
        7. Subscriber’s obligations concerning misuse and confidentiality of the Database and NAR’s right of action or claim against Subscriber for any breach thereof shall survive the termination of this Agreement. Failure of NAR at any time or times to enforce its rights under this Agreement shall in no manner affect its rights at a later time to enforce the same.
  10. CarZing Listing Program
    1. The following terms shall be applicable to all Subscribers (hereafter “Dealer”) participating in the Carzing Vehicle Listing and Prequalification Program (hereafter “Carzing Listing Program”).
      1. Carzing Listing Program. Under the Carzing Listing Program, Nowcom may create and/or display Dealer’s vehicle listings and other advertisements on the websites and/or other media platforms controlled by Nowcom, its affiliates, partners, or third parties (“Advertising Platforms”), and Nowcom will provide the functionality to prequalify potential customers for financing based on finance qualification criteria provided and/or approved by the Dealer (“Prequalify Functionality”). Dealer shall pay a participation fee to Nowcom in accordance with the Confirmation of Services. The Carzing Listing Program will operate as follows:
        1. Dealer will submit to Nowcom Dealer’s available for-sale vehicle inventory data to be advertised by Nowcom, including photos and all industry-standard vehicle information, either via a periodic, mutually agreed data feed, updated at least daily, or through management in the DealerCenter DMS platform, hereinafter “Dealer Content”.
        2. Nowcom will, pursuant to the advertiser relationship described in this Agreement, make available and list Dealer’s vehicle inventory and other information for viewing by potential customers on Advertising Platforms. Nowcom, its affiliates, or third-party operators of Advertising Platforms may highlight certain Dealers and give enhanced placement of certain Dealer’s inventory on Advertising Platforms, depending, in part, on the level of a Dealer’s participation and performance under the Carzing Listing Program and other considerations. Nothing shall require Nowcom to highlight or provide enhanced placement to any Dealer, and all such determinations will be made at the sole discretion of Nowcom.
        3. Nowcom may direct customers to the Dealer by (1) providing the name and address of the Dealer to customers with interest in purchasing a vehicle or vehicles; and/or (2) providing the phone number (or forwarding calls), email address, website address, or other contact details of the Dealer to the customers viewing the Advertiser Platforms; and/or (3) providing customers’ information to Dealer, which information may include one or more of the following: customer name, phone number(s), email address(es), information identifying the vehicle(s) of interest, and other relevant information in the format and method as Nowcom may determine in its sole discretion (together, “Lead”). Upon request, Dealer will promptly confirm Dealer’s contact information for the receipt of Leads.
        4. Nowcom will determine, from time to time and in its sole discretion, the eligibility requirements for the Carzing Listing Program and may decline to accept any Dealer that does not meet its requirements. Nowcom will continuously evaluate Dealer’s performance participating in the Carzing Listing Program, including but not limited to: conversion rate, responsiveness, customer satisfaction, and any other criteria determined from time to time by Nowcom. Dealer shall provide Nowcom with access to Dealer’s sales data with regards to any and all Leads provided by Nowcom for use for (i) consumer, vehicle and industry research and reference, including evaluation of Lead performance, and (ii) market analysis data.
      2. Dealer Content and Obligations
        1. Pursuant to the Carzing Listing Program, Dealer is providing data to Nowcom. Accordingly, Dealer hereby grants to Nowcom, and its service providers, a perpetual, transferable, sub-licensable, non-exclusive, and paid-up license to display, transmit, broadcast, access, edit, reformat, store, distribute, use, copy, prepare derivative works of, and otherwise use Dealer Content on Advertising Platforms. Dealer, or its vendor, will electronically send to Nowcom an inventory data file on a regular basis. If Dealer does not provide an inventory data file to Nowcom, Dealer authorizes Nowcom to obtain Dealer’s inventory from a third-party source and/or directly from Dealer’s publicly available inventory listings. Nowcom will make commercially reasonable efforts to display Dealer Content in the standard format displayed to consumers searching for a specified vehicle. For purposes of this section, “Dealer Content” means all content and materials provided by or made available for access by Nowcom, including vehicle and vehicle inventory data (including make, model, VIN, mileage, price), vehicle descriptions, logos, trademarks, branding, advertising text, photographs, images, dealer management system (“DMS”) information, banner ads, links, and contact information. Nothing herein shall grant any ownership to Dealer of any rights in any portion of the Advertising Platforms, or in any materials or content provided by Nowcom as part of the Carzing Listing Program.
        2. Dealer Content will satisfy all requirements in effect under the Carzing Listing Program, as Nowcom may specify from time to time. Nowcom is not responsible for screening and/or monitoring any of the Dealer Content, provided however, that Nowcom may edit, remove, and/or reject any Dealer Content or a portion of Dealer Content in its sole discretion, including content that Nowcom determines to be inappropriate or a potential violation of law. Nowcom shall have the right to position and display Dealer Content on Advertising Platforms as it determines in its discretion. Nowcom makes no representations or warranties regarding internet traffic or the number of views, and assumes no obligation to monitor Dealer Content.
        3. Dealer represents and warrants that Dealer Content and any other content provided by Dealer for advertising or publication by Nowcom will comply with all applicable federal, state and local laws, rules and regulations, including without limitation, all federal and state advertising rules, regulations, and laws; all consumer protection laws, the Federal Truth in Lending Act/Regulation Z, the Fair Credit Reporting Act, the Gramm-Leach-Bliley Act, 12 U.S.C. § 5531 (which prohibits unfair, deceptive, or abusive acts or practices and is commonly known as “UDAAP”), Federal Trade Commission Act (commonly known as “UDAP”), the Federal Equal Credit Opportunity Act/Regulation B, and all applicable state motor vehicle installment sales acts, credit codes or similar laws. Specifically, in its preparation of Dealer Content and any other content provided by Dealer for advertising or publication by Nowcom, Dealer will provide all disclosures to prospective buyers required by law or regulation in connection with a sale of a motor vehicle, and Dealer Content will not infringe the intellectual property rights of any third party.
        4. Nowcom assumes no liability for any Dealer Content and for any of Dealer’s content and language related to Dealer’s inventory posted by Dealer on Advertising Platforms.
        5. For all customers provided as Leads, Dealer will provide to all prospective purchasers for whom a credit application was submitted, all notices required by applicable law, including, but not limited to, adverse action notices and risk-based pricing notices that may be required under the ECOA, the FCRA, and the rules promulgated under the FCRA.
      3. Nowcom Customer Information
        1. Dealer expressly understands and acknowledges that any customer information disclosed by Nowcom to Dealer includes “non-public personal information” (“NPPI”), as such term is defined in the Gramm-Leach-Bliley Act, any state privacy and information security statutes, any federal and state privacy and information security regulations, as applicable (including 16 CFR Part 314, and 12 CFR Parts 332, 364 and 1016), and any successor statutes and regulations to the foregoing (the “Privacy Act and Regulations”), the disclosure of which to Dealer hereunder constitutes a disclosure to a “nonaffiliated third party” under an exception to certain restrictions on such disclosures contained in the Privacy Act and Regulations. Except as expressly requested in writing to Dealer by customer, Dealer shall not use or disclose the NPPI it receives for purposes other than those necessary in conjunction with the customer’s interest in purchasing a vehicle.
        2. Dealer represents and warrants that in the performance of this Agreement and use of the Leads, Dealer will comply with all applicable federal, state, and local laws and regulations including, without limitation, the Gramm-Leach-Bliley Act and any other federal or state legislation governing the collection, use, disclosure and protection of NPPI. Dealer will be solely responsible for any violations of law with respect to Dealer’s use of customer’s NPPI.
        3. Dealer will implement and will continue to maintain appropriate safeguards for the NPPI that it receives from Nowcom: (i) to ensure the security and confidentiality of NPPI; (ii) to protect against any anticipated threats or hazards to the security or integrity of NPPI; and (iii) to protect against unauthorized access to or use of NPPI. Dealer agrees to immediately notify Nowcom in the event that Dealer reasonably suspects that NPPI has been or may have been subject to unauthorized internal or external access. Dealer shall cooperate with Nowcom in complying with any federal or state law or regulation requiring Nowcom or Dealer to provide notice to a person that a suspected breach or compromise of such person’s personal information, as supplied to Dealer, has occurred or is believed to have occurred. NPPI shall not need to be expressly identified or marked as “confidential information” to be considered confidential information under this Agreement.
      4. Nowcom does not guarantee any minimum number of Leads or any sales as a result of Dealer’s participation in the Carzing Listing Program. Nowcom shall not be under any obligation to direct any customers to any Dealer or provide customer information to a Dealer, and Dealer shall not be obligated to sell any vehicle to a customer or finance the purchase through a specific lender.
      5. Nowcom reserves the right (but shall not have the obligation) to add, remove, update or modify features, deliverables, and products of the Carzing Listing Program, including but not limited to, eligibility and participation, as well as any other product or service offered by Nowcom and through the Advertising Platforms without notification to Dealer.
      6. NOWCOM HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE FOR ANY DEALER CONTENT DISPLAYED ON ADVERTISING PLATFORMS. DEALER’S USE OF THE ADVERTISING PLATFORMS, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE ADVERTISING PLATFORMS OR THE CARZING LISTING PROGRAM IS AT DEALER’S OWN RISK. THE ADVERTSING PLATFORMS AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE ADVERTISING PLATFORMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND NEITHER NOWCOM NOR ITS AFFILATES OR VENDORS WILL BE RESPONSIBLE FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING FROM OR IN CONNECTION WITH THE CARZING LISTING PROGRAM. WITHOUT LIMITING THE FOREGOING, NEITHER NOWCOM NOR ANYONE ASSOCIATED NOWCOM REPRESENTS OR WARRANTS THAT THE ADVERTISING PLATFORMS, THEIR CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ADVERTISING PLATFORMS WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE ADVERTISING PLATFORMS OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE ADVERTISING PLATFORMS, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ADVERTISING PLATFORMS, WILL OTHERWISE MEET DEALER’S NEEDS OR EXPECTATIONS. NOWCOM WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT A DEALER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO DEALER’S USE OF OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE CARZING LISTING PROGRAM OR THE ADVERTISING PLATFORMS.
      7. All intellectual property relating to the Carzing Listing Program and the Advertising Platforms, including, but not limited to, patents, design rights, copyrights, trademarks, service marks, database rights, trade secrets, know-how and all derivative works thereof, including, but not limited to, future enhancements and modifications thereof (collectively, the “Intellectual Property”), is and will remain the property of Nowcom. Dealer acknowledges that its participation in the Carzing Listing Program does not constitute a “work made for hire.” Dealer shall not take any action that jeopardizes, limits or interferes with Nowcom’s ownership of and/or right to use the Intellectual Property.
      8. Dealer’s vehicle inventory shall be displayed by Nowcom on the Advertising Platforms. Dealer may discontinue participation in the Carzing Listing Program by providing notice to Nowcom, via e-mail, to the following address: [email protected], of Dealer’s intent to no longer participate in the Carzing Listing Program.
  11. Kelley Blue Book® Database
    1. Nowcom allows Subscriber to subscribe to the Kelley Blue Book Co., Inc. (“Kelley”) database service (the “Database”).
      1. Subscriber shall comply with all of the following terms of use of the Database as a condition of accessing the Database:
        1. Subscriber acknowledges that the trade names, trademarks and service marks “Kelley Blue Book,” “Blue Book,” “Bluebook,” (collectively, the “Kelley Marks”) and the Kelley Blue Book seal are the exclusive property of Kelley and shall be considered and treated by Subscriber as the proprietary information of Kelley (the “Kelley Proprietary Information”). With the exception of the Subscriber’s use of the Database through the Solution in accordance with this Agreement, Subscriber shall not, directly or indirectly, disclose, sell or otherwise transfer or exploit Kelley Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Kelley Proprietary Information, or any portion thereof, without the prior written consent of Kelley, which may be withheld in Kelley’s sole discretion. Subscriber acknowledges and agrees that Kelley is the owner of the Kelley Marks and the Kelley Proprietary Information and Subscriber agrees that it has no right, title, or interest in any of the Kelley Marks and the Kelley Proprietary Information.
        2. Nowcom hereby grants Subscriber a personal, non-transferable and non-exclusive limited license to use the Solution consisting of a compilation of various modules of the Solution combined with the Database and the Kelley Proprietary Information and further grants to Subscriber a personal, nontransferable and on exclusive limited sublicense to use the Database and the Kelley Proprietary Information within the Solution under a license granted by Kelley to Subscriber. Subscriber is only authorized to use the Database to access the Database within the Solution for the purpose of retrieving values on a vehicle for its own internal inventory analysis purposes for inventory valuation and inventory management processes for those vehicles within it’s used car inventory. Subscriber agrees that Kelley owns all rights, title and interest in and to the Database, and any derivative works thereof, including but not limited to all literary property rights, copyrights, trademarks, trade secrets, tradenames or service marks, including goodwill and all rights, title and that all rights, title and interest shall remain with Kelley and use of the Database by Subscriber or any information therein by any person or firm other than Subscriber’s or its employees (on a need to know basis) is prohibited by Kelley. Subscriber shall keep confidential the Database or any information therein and use its best efforts to prevent and protect the contents of the Database from unauthorized disclosure, copying or use.
        3. ALTHOUGH KELLEY MAY COMPILE THE DATABASE CONTAINED WITHIN THE SOLUTION, KELLEY DOES NOT WARRANT THE SOLUTION OR THE CONTENTS THEREIN. THEREFORE, THE DATABASE IS PROVIDED “AS IS” AND KELLEY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF THE DATA FROM WHICH THE DATABASE IS COMPILED, THAT THE DATABASE IS FREE FROM ERRORS AND OMISSIONS, THE MERCHANTABILITY AND FITNESS OF THE DATABASE FOR A PARTICULAR PURPOSE, OR USE, OR PERFORMANCE OR RESULTS OBTAINED BY USING THE DATABASE WITHIN THE SOLUTION. UNDER NO CIRCUMSTANCES SHALL KELLEY BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, ALL OTHER COMMERCIAL DAMAGES OR LOSSES IN CONNECTION WITH THE DATABASE. KELLEY EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOLUTION, AND SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
        4. Subscriber’s obligations concerning misuse and confidentiality of the Database and Kelley’s right of action or claim against Subscriber for any breach thereof shall survive the termination of this Agreement. Failure of Kelley at any time or times to enforce its rights under this Agreement shall in no manner affect its rights at a later time to enforce the same.
  12. NADA e-Valuator®
    1. The following terms shall be applicable to all Subscribers electing to subscribe use the NADA e-Valuator® database (the “NADA Database”):
      1. With respect to Services incorporating the NADA e-Valuator® (hereinafter, the “NADA Program”), Subscriber agrees as follows:
        1. Subscriber acknowledges that the right to use the NADA Program shall not permit Subscriber to market, license or utilize the NADA Program separate from or independent of the Agreement.
        2. Subscriber agrees to not disassemble, decompile, reverse engineer or otherwise modify or alter the NADA Program.
        3. Subscriber agrees that the NADA Database shall not be used as a data source from which a new valuation data base or valuation system may be created, and that vehicles will be valued individually as needed.
        4. Subscriber shall not reproduce, store in a retrieval system or transmit, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, any vehicle valuation information contained in the N.A.D.A. Official Used Care Guide® (hereinafter, the “NADA Values”) without the prior written consent of Nowcom and NADA Services Corporation (“NADA”).
        5. Subscriber acknowledges and agrees that the NADA Database, the NADA Values, all enhancements and derivative works, are the sole property of NADA Services Corporation, and are subject to a valid copyright. Subscriber acknowledges that NADA has created the NADA Values and the NADA Database at great time and expense and that the NADA Values and the NADA Database contain confidential and proprietary information protected by copyright and trade secret laws. Subscriber further acknowledges that certain of its employees will become familiar with the NADA Database, and that NADA may suffer great harm in Subscriber, or its employees disclose the NADA Database to a third party. Subscriber, therefore, agrees to: (a) hold the NADA Database in strict confidence; (b) disclose the NADA Database only to Subscriber’s employees to whom knowledge is required for its proper use hereunder; (c) cause such employees to hold the NADA Database in strict confidence; and (d) take steps to prevent the accidental or otherwise unauthorized disclosure of the NADA Database. The confidentiality obligations of Subscriber contained in this paragraph shall survive termination of the Agreement.
  13. Online Ad Post
    1. The following terms shall be applicable to all Subscribers electing to use the Online Ad Post:
      1. Subscriber acknowledges that the Service integrates with multiple vehicle inventory listing sites (“Sites”). For the Service to function, Subscriber acknowledges that:
        1. Subscriber must have an account established with each Site that requires such to be able to utilize the integration.
        2. Subscriber shall provide DealerCenter with the customer ID and password for all selected Sites.
        3. Subscriber acknowledges that electing to use the Online Ad Post requires that inventory management must be performed in the DealerCenter Inventory Service or prior to importation there. Adjustments made directly at the Sites will disrupt the integration, and cause data inconsistencies.
    2. Subscriber hereby authorizes Nowcom to access and promote, advertise and market vehicles from Subscriber’s inventory on behalf of Subscriber. Subscriber acknowledges that multiple media venues will be used by Nowcom, at Nowcom’s discretion, and agrees to pay the Service Fees to Nowcom in exchange for Nowcom’s lead generating efforts and expertise.
    3. Subscriber hereby authorizes Nowcom to receive a data feed from its data management company and to use branding, messaging and strategies Nowcom deems appropriate and necessary in producing and delivering leads to Subscriber.
    4. Subscriber hereby authorizes Nowcom to use and share with third parties, publicly available inventory data, even if received from Subscriber’s data feed, for the purpose of analysis. Publicly available inventory data includes information customarily found on vehicle listing websites, e.g., year, make, model, trim, price, equipment, seller’s note, mileage, etc., but will not include dealer’s cost, if included in the data feed.
  14. Tax Automation Services
    1. Nowcom may provide tax automation services to Subscriber, consisting of a calculation of certain taxes based on data provided by third-parties and/or applicable taxing authorities (the “Authorities”) and the Subscriber (the “Tax Automation Services”). Under no circumstances shall Nowcom be liable for any inaccuracy in said calculation to the extent that such inaccuracy is the result of incorrect data provided by the Authorities, the Subscriber, or a third-party.
  15. Credit Reporting Service(s), including Experian, Equifax and/or TransUnion
    1. Grant of License and Limitations
      1. Subscriber may reproduce or store the information obtained from Nowcom solely for each of its respective own uses in accordance with this Agreement, and will hold all information licensed hereunder in strict confidence and will not reproduce, reveal or make it accessible in whole or in part, in any manner whatsoever, to any person, company, or any other third party unless required by law, or unless Subscriber first obtains Nowcom’s written consent; provided, however, that Subscriber, as applicable, may discuss information in a consumer report with the subject of that consumer report when Subscriber has taken adverse action against the subject based on the consumer report. Subscriber will not provide a copy of the consumer report to the consumer, except as may be required or permitted by law or approved in writing by Nowcom, except in any state where this contractual prohibition would be invalid. Subscriber will not interpret the failure of Nowcom to return information regarding the consumer’s eligibility for a credit service as a statement regarding that consumer’s credit worthiness, because that failure may result from one or more factors unrelated to credit worthiness.
    2. Subscriber’s Affirmative Covenants
      1. Subscriber and Subscriber’s Authorized Users shall:
        1. Order consumer reports, as defined by the Federal Fair Credit Reporting Act of 1995, as amended in 2003, 15 U.S.C. 1681 et. seq., as amended in 2003 by the Fair and Accurate Credit Transactions Act (the “FCRA”) only when Subscriber intends to use the consumer report: (1) in accordance with the FCRA and all state law FCRA counterparts, and (2) for one of the following FCRA permissible purposes: (i) in connection with a credit transaction involving the consumer on whom the consumer report is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; (ii) in connection with the underwriting of insurance involving the consumer; (iii) as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; (iv) when Subscriber otherwise has a legitimate business need for the information either in connection with a business transaction that is initiated by the consumer, or to review an account to determine whether the consumer continues to meet the terms of the account; (v) in accordance with the written instructions of the consumer to whom it relates; or (vi) for employment purposes. Client will use each consumer report ordered from Nowcom for one of the foregoing purposes and for no other purpose.
        2. Comply with the provisions of the FCRA, the Gramm-Leach-Bliley Act (the “GLB Act”), the Federal Equal Credit Opportunity Act, as amended (the “ECOA”), all state law counterparts of them, and all applicable regulations promulgated under any of them, including, without limitation, any provisions requiring adverse action notification to the consumer.
        3. Hold in strict confidence any consumer report received by Subscriber and not to distribute a copy to any other party, except as required by law or other lawful order. However, this restriction shall not prohibit Subscriber from discussing with the subject of the report, who is the subject of an adverse action, the content of the report as it relates to the reason for the adverse action.
        4. Maintain copies of all written, signed and dated credit applications and other authorizations for a minimum of five (5) years from the date of inquiry.
        5. Cooperate with Nowcom or Credit Agency investigations within the timeframe requested, including those for audit purposes and FCRA investigation requirements, such as requests for proof of permissible purpose.
        6. Read the Notice to Users of Consumer Reports located at https://www.dealercenter.com/fcra-notice/ and understand the obligations as provided by the FCRA.
        7. Comply with the terms of the Access Security Requirements accessible at https://www.dealercenter.com/access-security-requirements/ and incorporated herein by reference.
    3. Subscriber’s Negative Covenants
      1. Subscriber and Subscriber’s Authorized Users shall not:
        1. Attempt to obtain credit reports on themselves, family members, associates, or any other person except in the exercise of their official duties. (THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH).
        2. Resell any information provided by Nowcom or the Credit Agency.
        3. Deliver credit information via the Internet.
        4. Request, obtain or use credit reports for any unauthorized purpose including, but not limited to, for the purpose of selling, leasing, renting or otherwise providing information obtained under this Agreement to any other party, whether alone, in conjunction with Subscriber’s own data, or otherwise in any service which is derived from the credit reports. The credit reports shall be requested and disclosed by Subscriber only to Subscriber’s designated and authorized employees having a need to know and only to the extent necessary to enable Subscriber to use the credit reports in accordance with this Agreement.
    4. Credit Risk Score Disclosure
      1. The following disclosure applies to use of credit risk scores provided through the Solution:
        1. Subscriber is a credit grantor that purchases credit reports from Nowcom pursuant to this Agreement in connection with credit transactions involving the consumer subjects of such credit reports. As an enhancement to the basic credit report, Nowcom has offered Subscriber the opportunity to purchase one or more credit risk scores provided by Credit Agency (defined below).
        2. Subscriber agrees to pay Nowcom the applicable fee for each score obtained. All score fees are due in the same manner and subject to the same terms and conditions as the fees in the Agreement. Fees are subject to change upon prior written notice.
        3. Subscriber recognizes that all credit risk scores offered hereunder are statistical scores and may not be predictive as to any particular individual. No such score is intended to characterize any individual as to credit capability. Subscriber recognizes that factors other than the credit risk score or scores selected must be considered in making a credit decision, including the credit report, the individual credit application, economic factors, and various other pertinent factors.
        4. A statement of the factors that significantly contributed to the credit risk score may accompany the score. If so, such information may be disclosed to the consumer as the reason for taking adverse action. However, the credit risk score itself is proprietary and may not be used as the reason for adverse action. In addition, under the Fair Credit Reporting Act, credit risk scores are not considered part of the consumer’s file. Accordingly, Subscriber agrees not to disclose the actual credit risk score to the consumer, unless otherwise required by law.
        5. SUBSCRIBER HAS MADE ITS OWN ANALYSIS OF THE CREDIT RISK SCORE OR SCORES ELECTED BY SUBSCRIBER, INCLUDING THE STATISTICAL RELIABILITY AND THE UTILITY OF USING SUCH SCORES IN CONNECTION WITH SUBSCRIBER’S CREDIT DECISION, AND NEITHER NOWCOM NOR ANY CREDIT AGENCY SHALL BE LIABLE FOR ANY LOSS, COSTS, DAMAGES, OR EXPENSE INCURRED BY SUBSCRIBER RESULTING FROM THE USE OF THE SCORE, OR THE INACCURACY THEREOF. IN NO EVENT SHALL ANY SUCH PERSON BE LIABLE TO SUBSCRIBER FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THE TOTAL AGGREGATE LIABILITY OF NOWCOM, IN ANY WAY RELATED TO THE USE OF ANY CREDIT RISK SCORE SHALL NOT EXCEED THE SURCHARGE PAID BY SUBSCRIBER IN CONNECTION WITH THE SCORE TO WHICH THE CLAIM RELATES.
    5. Records Retention and Production
      1. The Federal Equal Credit Opportunity Act states that a creditor must preserve all written or recorded information connected with an application for 25 months. Due to the statute of limitations under the FCRA, each Credit Agency requires that you retain the credit application and, if applicable, a purchase agreement for a period of 60 months. When conducting an investigation, particularly following a consumer complaint that your company impermissibly accessed a credit report, Nowcom or any one or all three of the Credit Agencies will contact you and will request a copy of the original application signed by the consumer or, if applicable, a copy of the sales contract.
    6. Penalty Notice
      1. Under Section 621(a)(2)(A) of the FCRA, any person that violates any of the provisions of the FCRA may be liable for a civil penalty of not more than $2,500 per violation.
    7. Subscribers of Experian Credit Reports, Experian Precise ID with Knowledge IQ, Experian/Fair, Isaac Credit Scores and Reason Codes, or Experian Prequalification Reports
      1. You agree to be bound by the terms and conditions of the Experian Terms located at https://www.dealercenter.com/experian-terms/ and incorporated herein by reference.
    8. Subscribers of TransUnion Credit Reports
      1. You agree to be bound by the terms and conditions of the TransUnion Terms located at https://www.dealercenter.com/transunion-terms-of-use/ and incorporated herein by reference.
    9. Subscribers of Equifax Credit Reports
      1. You agree to be bound by the terms and conditions of the Equifax Terms located at https://www.dealercenter.com/equifax-terms-of-use/ and incorporated herein by reference.
  16. DealerCenter Mobile Application
    1. The following terms shall be applicable to all Subscribers electing to use the DealerCenter Mobile Application:

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