User Terms of Service
The website Vistadash.com is owned and operated by Vistadash, Inc. These terms of Service apply to all Vistadash products.
These Terms of Service (this “Agreement”) are entered into by Vistadash (“The Company”) and the entity executing this Agreement (“Client”, “You”, “Your”). This Agreement governs your use of the Vistadash service (“The Service”) located at www.Vistadash.com and accessible by your user login and password. BY CLICKING THE “I AGREE” BUTTON, COMPLETING THE REGISTRATION PROCESS, PURCHASING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THE ACCOUNT. In consideration of the foregoing, the parties agree as follows:
“Account” refers to the billing account for the service. All profiles or “stores” linked to a single property will have their data-partner information aggregated for the service for that property.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of confidential information.
“Customer Data” means the data concerning the characteristics and activities provided by information thru a 3rd party source, API, email, or by the client, that is collected through use of the service, or through communications with a representative of the service, and then forwarded to the servers and analyzed by the processing software.
“Documentation” means any accompanying documentation made available to the client by the service for use with the processing software, including any documentation available online.
“Processing Software” means the server-side software and any upgrades, which analyzes the customer data and generates the reports.
“Profile” means the collection of logins, settings and data that together determine the information to be included in, or excluded from, a particular report. For example, a profile could be established to view a single store’s data of a web site as a unique report. There can be multiple profiles established under a single account.
“Property” means a group of web pages, API data or apps that are linked to an account. Each property includes a default profile that measures all metrics within the property.
“Report” means the resulting analysis shown at http://www.Vistadash.com for a profile.
“Servers” means the computers controlled by the company (or its wholly owned subsidiaries) on which the processing software and customer data are stored.
“Software” means the service (“Vistadash”), the programming language and the processing software.
“Third Party” means any third party (i) to which you provide access to your account or (i) for which you use the service to collect information on the third party’s behalf.
“Visitors” mean visitors to your properties.
The words “include” and “including” mean “including but not limited to.”
The service’s intent is to give insights to you for the purpose of doing better business, spending better and measuring vendor metrics. In the same way that you wish to protect your business, the service protects both your data and data partners working with the service.
Upon the entry or storage of a user name and password, customer ID or other type of identifier you share with the service, you agree the service has the right to access all information provided by the data partner for the purposes of this service for your accounts. Interface data or metrics from a data partner or other type of service will enable the service to retrieve and store the data provided by the data partner. This data is considered shared between the data partner, you and the service.
The data stored in the service may be used in shared reports and/or case studies between the service and the data partner on that partner’s data.
At no time will the service directly identify you or use your company name or your personal information without your expressed written consent.
Accounts are transferable to new users on your account after confirming the company name and information match our records, in the event you cannot be contacted or are terminated by your company.
The service reserves the right to run diagnostics, analysis reports and/or studies based on the data in your account. Identifying characteristics of your account may be used in such reporting including but not limited to the OEM franchises of your dealership(s), store location, monthly subscription level and pricing of vendor services, data partner metrics and user entered data.
As described above, unique identifying characteristics of your account, such as dealership name, user name and contact information will not be used in the service’s reporting and studies.
Your information may be accessed by the data partner who is providing data for your account, at any time, to verify the validity of data stored in the service about that data partner. At no time will the data partner have access to other data partner metrics about your account. Access for the data partner to your account will be limited only to the data which that partner provided.
You may, once a year, request full disclosure and report on all actions, data, metrics, logins, access-points and modifications made to your account.
At the termination of your account, all data associated with your account will be stored and archived for possible future use by the dealership or reporting by the company. Essential book keeping materials such as payment history, subscription history, payment processing data, user account contact information, and other such necessary data in order to preserve a sound financial record of the service’s history, will be maintained and stored by the company until such a time exists it is no longer valid or necessary to keep.
If it is requested, all data partner metrics, information, logins, passwords, user entered data and other such information, will be removed from the system at your request, however, this information excludes the data as described in the paragraph above pertaining to payment and financial recordkeeping for the service.
3. Fees and Service.
The monthly services fee will be due by the 15th day of each month beginning the month following activation date during the Term of this Agreement and any Renewal Terms hereof. Reoccurring monthly billing will begin no later than 45 days after the implementation documents are sent to the client.
Vistadash shall submit to You monthly invoices for any Services billable hereunder. The invoice shall include any unpaid fees for Services. All invoices must be paid in full within fifteen (15) days of the invoice date.
In the event You claim any discrepancy or inaccuracy in any invoice, such claim must be asserted by You within thirty (30) days from invoice date or such invoice shall be deemed final and conclusive. All such claims shall be in writing and Vistadash shall respond thereto in thirty (30) days. However, this dispute resolution provision shall not relieve You of paying the ongoing fee for Services as governed by this Agreement.
Fees or invoices that become thirty (30) days past due will incur an additional charge of one and one-half percent (1+1/2%) per month from the date the fee is due or the invoice is issued. Accounts referred to a third-party collection agency will be charged an additional collection fee equal to our costs associated with utilizing a third-party agency. Any account delinquent 60 days will have all work frozen and the account will be locked until payment is rendered to the company.
It shall be a breach of this Agreement if the fee is not paid when due or any invoice becomes sixty (60) days past due.
Vistadash, at its sole discretion, may require prepayment and/or alterative payment methods (i.e. credit card) should an invoice be paid after the invoice due date.
4. Member Account, Password, and Security.
To register for the service, you must complete the registration process by providing the company with current, complete and accurate information as prompted by the registration form. When using Vistadash you will protect your passwords and take full responsibility for your own, and third party, use of your accounts. You are solely responsible for any and all activities that occur under your account. You will notify the company immediately upon learning of any unauthorized use of your account or any other breach of security. The company’s (or its wholly-owned subsidiary support staff may, from time to time, log in to the service under your customer password in order to maintain or improve service, including to provide assistance with technical or billing issues.
Neither party will use or disclose the other party’s confidential information without the other’s prior written consent except for the purpose of performing its obligations under this agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose confidential information will give the other party as much notice as is reasonably practicable prior to disclosing the confidential information. Upon termination of this agreement, the parties will promptly either return or destroy all confidential information and, upon request, provide written certification of such.
6. Information Rights and Publicity.
The company reserves the rights to use all data processed and stored by the service in order to make generalized analysis and trend-based reports on such data at its will. These reports may consist to the point of generalizations about your account. IE: “Data from All Jeep Store Websites Show…” The company will not use the account information with use of the specific name on the account without the expressed written consent of the account owner.
The company and its wholly owned subsidiaries may retain and use information collected in your use of the service. The company will not share your customer data or any third party’s customer data with any third parties unless the company (i) has your consent for any customer data or any third party’s consent for the third party’s customer data; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of customer data is reasonably necessary to protect the rights, property or safety of the company, its users or the public; or (iii) provides customer data in certain limited circumstances to third parties to carry out tasks on the company’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by the company. When this is done, it is subject to agreements that oblige those parties to process customer data only on the company’s instructions and in compliance with this agreement and appropriate confidentiality and security measures.
Each party shall hold harmless, and indemnify the other party and its directors, officers, agents and employees against any and all loss, liability, damage, or expense, including any direct, indirect or consequential loss, liability, damage, or expense, but not including attorneys’ fees unless awarded by a court of competent jurisdiction, for injury or death to persons, including employees of either Party, and damage to property, including property of either party, arising out of or in connection with intentional, willful, wanton, reckless or negligent conduct regarding (a) the engineering, design, construction, maintenance, repair, operation, supervision, inspection, testing, protection or ownership of the party’s facilities, or (b) the making of replacements, additions, or improvements to, or reconstruction of, the party’s facilities. However, neither party shall be indemnified hereunder for any loss, liability, damage, or expense resulting from its sole negligence or willful misconduct. Notwithstanding the indemnity provisions contained herein, except for a party’s willful misconduct or sole negligence, each party shall be responsible for damage to its own facilities resulting from electrical disturbances or faults.”
8. Third Parties.
9. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
10. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE COMPANY OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE COMPANY’S (AND ITS WHOLLY OWNED SUBSIDIARIES’ TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID FOR THIS SERVICE FOR A ONE YEAR PERIOD.
11. Proprietary Rights Notice.
The service, which includes the software and all intellectual property rights therein are, and will remain, the property of the company (and its wholly owned subsidiaries). All rights in and to the software not expressly granted to you in this agreement are reserved and retained by the company and its licensors without restriction, including, the company’s (and its wholly owned subsidiaries’) right to sole ownership of the software and documentation. Without limiting the generality of the foregoing, you agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the service or software outside of the scope of the license granted in this agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the software or otherwise attempt to discover any source code or trade secrets related to the service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the software or the service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the service or the software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the service for any purpose without the express written consent of the company; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with the company (or its wholly owned subsidiaries) other than in the name of the company (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the service.
12. Term and Termination.
Termination of this agreement within the initial term will result in a Termination Fee equal to the average monthly invoice total charged for the previous 3-months multiplied by the remaining months of the initial term. This agreement will automatically renew on a month to month basis after term date unless 30 days written notice of cancellation is provided to firstname.lastname@example.org.
We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), for any reason or for no reason, at our discretion at any time. If Vistadash determines that providing advance notice would negatively impact Vistadash’s ability to provide Services, Vistadash may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), with no notice. Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.
13. Modifications to Terms of Service and Other Policies.
The company may modify these terms or any additional terms that apply to the service to, for example, reflect changes to the law or changes to the service. Changes will not apply retroactively and will become effective no sooner than 14 days after. If you do not agree to the modified terms for the service, you should discontinue your use of the service. No amendment to or modification of this agreement will be binding unless (i) in writing and signed by a duly authorized representative of the company, (ii) you accept updated terms online, or (iii) you continue to use the service after the company has posted updates to the agreement or to any policy governing the service.
14. Miscellaneous, Applicable Law and Venue. The company will be excused from performance in this agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between you and the company concerning its subject matter and supersedes all prior agreements and representations between the parties. If any provision of this agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this agreement will continue in full force and effect. This agreement will be governed by and construed under the laws of the state of TEXAS without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and TEXAS law, rules, and regulations, TEXAS law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in DALLAS County, TEXAS. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this agreement. The software is controlled by U.S. Export Regulations, and it may not be exported to or used by embargoed countries or individuals. Any notices to the company must be sent to: Vistadash, Inc. 1505 Federal Street # 200, Dallas, Texas 75201with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of your rights in this agreement without the company’s prior written consent, and any such attempt is void. The relationship between the company and you is not one of a legal partnership relationship but is one of independent contractors. This agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.