- Purpose. The purpose of this Agreement is to set forth the terms and conditions under which, among other things, BSB will license to User use of certain of BSB’s technology, software and/or services such that User can, via the Website or mobile application, submit automobile damage reports (each, a "Damage Report") to certain automobile body shops which have registered with BSB to use the Application (each, a "Shop") so that one or more Shops can respond to and/or place bids or estimates in response to each such Damage Report.
- License. BSB hereby grants User a non-transferable, non-exclusive, revocable, limited license to access and use BSB’s software platform (the “Application”) as made available at its website located at www.bodyshopbids.com (the “Website”) or via mobile application during the Term (as defined below) solely for purposes of submitting Damage Reports. BSB may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at BSB’s discretion, be included within the license described above. User shall not be permitted to sublicense or transfer any of its rights hereunder including, without limitation, access to the Application.
- Certain Restrictions. User shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. User shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. User will not use the Application to post, transmit, convey, submit, distribute, store or destroy any information: (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at the Website from time to time. User shall not violate or attempt to violate the security of the Application. User shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. User shall defend and indemnify BSB, at User’s sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of User’s breach of any of its obligations or representations set forth in this Section 3.
- User’s Responsibilities. User shall be solely responsible for: (i) inputting into the Application accurate and appropriate information and/or images in submitting a Damage Report (which shall include a good faith description or depiction of the applicable damage); (ii) continually updating any such information to the extent it becomes inaccurate at any time while a Damage Report remains active; (iii) upon selecting the winning Shop in connection with a particular Damage Report, beginning prompt communications with such Shop to come to agreement and begin the repair process; (iv) honoring the terms and pricing associated with the bid, estimate or response submitted by the winning Shop; (v) complying with all applicable laws at all times including without limitation, in the case of a User which is an insurance company, complying with all applicable laws, rules and regulations regarding pricing disclosure to drivers and/or consumers and/or regarding the number of Shops permitted to submit bids and/or estimates in connection with a given Damage Report); (vi) in the case of a User which is an insurance company, ensuring that drivers and/or consumers will not, in the event such insurance company elects not have having pricing included within a bid or estimate as described above, suffer any adverse consequences on account of selecting a Shop which may not have offered the lowest pricing (including, without limitation, raising premiums on such drivers or consumers or cancelling policies); (vii) maintaining strict confidentiality in respect of all information submitted by a Shop in connection with a Damage Report; (viii) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application; (ix) notifying BSB of any payments made to a winning or selected Shop; and (x) providing to BSB, on a regular basis, all information requested within the Application regarding transactions with Shops consummated through the Application (which may include, without limitation, number of bids won, contract terms associated with such Damage Reports and the like).
- BSB Rights. BSB shall be entitled, at its sole discretion, to: (i) remove or cancel any Damage Report submitted by User that BSB deems to be offensive, illegal, inaccurate, contrary to any agreement or contract or inappropriate in any way, and BSB shall not be liable to User or any other party on account of any such decision; (ii) review all information entered by User in connection with a Damage Report or otherwise to ensure such information complies with all applicable rules and policies; or (iii) suspend, restrict and/or terminate, without notice of any kind, any User's access to the Application or any User's BSB account for any reason. Notwithstanding the foregoing, BSB shall not be required to review or monitor any data or information entered into the Application or otherwise posted by User, and User shall be solely responsible for the veracity and accuracy of all such data and information.
- Representations and Warranties. Each party represents and warrants that it has the authority to enter into this Agreement and perform the services required of it hereunder.
- Fees. BSB currently provides the license described herein at no cost to User. Notwithstanding the foregoing, BSB may at any time elect, in its sole discretion, to begin charging a fee for this license and/or its services. BSB will post any such fee at the Website and/or within this Agreement, and will provide reasonable advance written or electronic notice to User of any such fee prior to the initiation of such fee.
- Term and Termination. This Agreement shall continue in full force beginning on the date this Agreement is accepted or acknowledged by User and ending on the date either party provides written or electronic notice of termination to the other party (the “Term”). Upon termination of this Agreement for any reason, User shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the foregoing, in the event that BSB determines, in its sole and absolute discretion, that User has breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any BSB policy in effect from time to time or otherwise failed to perform to the standards required of BSB, BSB shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend User’s access to the Application and/or eliminate User’s access to submit Damage Reports, in each of the foregoing cases at any time and for any period of time. BSB shall not be responsible for the return of any data or information of any kind to User upon any termination of this Agreement or suspension of User’s access to the Application, including without limitation any information input into the Application by User. Sections 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 and 14 of this Agreement shall survive any termination of this Agreement.
(a) General Ownership. All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between User and BSB, User shall be deemed to be the sole owner of its name and all data or information entered into the Application or included within any Damage Report; and (ii) BSB is the sole owner of the name “BodyShopBids” as well as the Website, the Application, and all source code, object code, software, content (including, without limitation, user reviews posted at the Website from time to time), copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from User to BSB regarding the Application or the Website shall, upon submission to BSB, be owned solely and exclusively by BSB. In addition, BSB shall be entitled to post feedback at the Website and within the Application, both positive and negative, regarding any User. User acknowledges and agrees that the applicable supplier(s) of any third party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to BSB.
(b) Use of Submitted Information. In exchange for User’s use of the Website and/or the Application, User hereby grants to BSB an unlimited, irrevocable, fully-paid, transferable, non-exclusive worldwide license to use, reproduce, modify, publish, edit, translate, distribute, perform and display any content, photographs or other materials User posts to the Website or otherwise submits to BSB or through the Application (including, without limitation, within each Damage Report), alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, in connection with BSB performing the services described herein.
- Confidentiality; Non-Solicitation. Each party agrees to treat as confidential all confidential information of the other party, not to use such confidential information for any purpose other than to the limited extent necessary to perform under this Agreement and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, each of the parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of confidential information disclosed to it by the other party, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, User shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of BSB to terminate employment with BSB or to become employed by or enter into contractual relations with any other individual or entity.
(a) No Warranties. Except as explicitly set forth herein, neither BSB nor any of BSB’s employees, affiliates, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, or (d) as to the results that may be obtained by User by entering into this Agreement and/or using the Application. User agrees and acknowledges that the Application and Website are licensed and/or provided hereunder on an “as is” basis. In addition, User hereby agrees and acknowledges that: (i) BSB shall not be responsible for any actions taken by a Shop or any other third party, and as such, all disputes with a Shop or other such third party shall be resolved directly with such Shop or third party; (ii) BSB does not recommend or endorse any Shop or other third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party or whether or not a given Shop is more or less qualified than another Shop or any other automobile repair facility; (iii) User is solely responsible for evaluating and/or assessing any bid or estimate submitted in response to a Damage Report and determining what follow-up questions to ask of each Shop and which Shop to select; (iv) BSB does not guaranty that any Shop will honor its bid or estimate in connection with any Damage Report; (v) BSB has not established a business relationship with all automobile body shops which may be available and/or appropriate to satisfy User's automobile repair needs, and as such, the bids and/or estimates submitted in response to a Damage Report are not comprehensive and may not represent the best or optimal service providers for the issues described in a Damage Report; (vi) insurance companies with which BSB has established a business relationship may request or require that BSB display various preferred Shops in connection with a given Damage Report, however Users which are consumers or drivers are not required to work with or engage any such preferred Shop; (vii) bids submitted in connection with a Damage Report may, in situations where an insurance company will be paying the cost for the applicable repairs, not include pricing information (it being understood that insurance companies, in such situations, shall be solely responsible for complying with all applicable regulations regarding same); (viii) BSB is not responsible for any Shop's or insurance company's compliance with applicable laws, rules or regulations; (ix) BSB’s services are administrative in nature and BSB is not a party to any transaction between a Shop and User; and (x) the Application may not function properly or as intended at times. BSB shall not be liable in any way for any services provided to or by a Shop or any other party User learns about at the Website or through the Application, the performance of any service or any other action taken by a Shop any other third party. As such, User shall not name BSB or any of its officers or equity holders as a party in any litigation or arbitration arising out User's selection of any Shop and/or any communications or transactions with a Shop or any other third party.(b) Unavailability of Website or Application. User is responsible, at its sole cost and expense, for providing all equipment necessary to access the Internet, the Website and/or the Application. While it is BSB’s objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Application may operate slowly from time to time. User understands and acknowledges that due to circumstances both within and outside of the control of BSB, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, BSB shall not be liable in any way for any delay in responding to an inquiry or question forwarded by User or the effects any delay or unavailability may have on User. USER AGREES THAT BSB SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT USER SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.
- Limitation on Liability. BSB SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO USER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR USER’S USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY EVENT, BSB’S TOTAL LIABILITY TO USER FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
- Force Majeure. BSB shall not be liable to User for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
General Website Terms. The following terms and conditions govern general use of the Website:
(a) User agrees to abide by all restrictions displayed on the Website, as and when they are updated from time to time, including, without limitation, the rules in this Section 14. BSB reserves the right to remove any content User posts to the Website, block the sending of any inquiry or other content BSB deems inappropriate in its sole discretion, and may terminate all access to the Website at any time in its sole discretion for any or no reason. While BSB reserves the right to monitor all postings and/or content posted at the Website, it has no obligation to do so.
- Permitted Uses. User may use the Website only in good faith for the purposes described herein. User may download and print out portions of the content from the Website for non-commercial purposes provided that User follows the rules in this Agreement.
- Distribution. Except as expressly permitted under other provisions of this Agreement, User may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.
- Derivative Works. User may not create compilations or derivative works of the Website, the Website content or any other materials from the Website.
- Infringement. User may not use the Website, the Website content or any other materials from the Website in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of BSB or any third party.
- Information Distribution. User may not use the Website or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to User on or through the Website to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:
- is false;
- contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals;
- User is restricted from using under contractual restrictions or fiduciary obligations, including, without limitation, inside information and proprietary and confidential information learned or disclosed under nondisclosure agreements;
- User is restricted from using under any law;
- infringes upon the intellectual property rights of any third party; or
- contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
- Other Prohibited Uses. User may not use the Website for any purpose that:
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or otherwise violates BSB’s rules or policies;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
- invades any person’s or entity’s privacy or other rights;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- misidentifies User or impersonates any person or entity, including, without limitation, any employee or representative of BSB, or falsely states, implies, or otherwise misrepresents User affiliation with a person or entity by, for example, pretending to be someone other than User or pretending to represent a company or organization that User is not affiliated with or authorized to represent; or
- could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
- Others’ Personal Information. User may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
- Harm to Minors. User may not take any action on the Website or use the Website content to harm minors in any way.
- Solicitation. User may not use the Website or any Website content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
- Miscellaneous. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement shall be resolved in the appropriate Federal or state court located solely and exclusively in Cook County, Illinois. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by User without BSB’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.