CARFAX Canada REPAIR DATA LICENCE TERMS AND CONDITIONS
These CARFAX Canada Repair Data Licence Terms and Conditions (these "Terms and Conditions"), the application that is subject to these Terms and Conditions that was executed by the company identified therein ("Provider") and CARFAX Canada Corporation ("CARFAX Canada") (the "Application"), and all appendices, schedules, exhibits and addenda to the Application (whether such schedules, exhibits and/or addenda became effective on the same date that the Application was executed by Provider or at a later date), collectively form the agreement (the "Agreement") between CARFAX Canada and Provider.
Certain Definitions. In the Agreement, the following terms will have the following meanings, and any terms used but not defined in these Terms and Conditions will have the meanings set forth in the Application:
"Affiliate" of any Person means, at the time such determination is made, any other Person, Controlling, Controlled by or under common Control with such first Person, in each case, whether directly or indirectly.
"Applicable Laws" means any domestic or foreign law, rule, statute, subordinate legislation, regulation, by-law, order, ordinance, protocol, code, guideline, treaty, policy, notice, direction or judicial, arbitral, administrative, ministerial or departmental judgment, award, decree, treaty, directive or other requirement or guideline published or in force at any time during the Term which applies to or is otherwise intended to govern or regulate any Person, property, transaction, activity, event or other matter, including any rule, order, judgement, directive or other requirement or guideline issued by any Governmental or Regulatory Authority.
“CARFAX Canada Indemnitees” means CARFAX Canada, its Affiliates and their respective officers, directors, shareholders, employees, contractors, agents, successors and permitted assigns.
“Claim(s)” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand brought by a Third Party.
“Control” of a Person is held by another Person that possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such former Person, whether: (a) by contract; (b) by ownership of securities of the former Person to which are attached more than 50 percent of the votes that may be cast to elect directors or persons acting in a similar capacity of the Person are held; or (c) otherwise, and “Controlled” and “Controlling” have corresponding meanings.
“Confidential Information” of a Party (the “Disclosing Party”) means any and all information (in whatever form communicated or maintained, whether orally, in writing, electronically, in computer readable form or otherwise) of the Disclosing Party and any of its licensors that the Disclosing Party maintains and protects as confidential and marks or otherwise identifies as confidential, is disclosed in circumstances of confidence, or would be understood by the Parties, acting reasonably, to be confidential, that has or will come into the possession or knowledge of the other Party (the “Receiving Party”) in connection with or as a result of the performance of any obligations under or related to the Agreement. Notwithstanding the foregoing, “Confidential Information” does not include information that is:
- (a) publicly available when it is received by or becomes known to the Receiving Party or that subsequently becomes publicly available other than through a direct or indirect act or omission of the Receiving Party (but only after it becomes publicly available);
- (b) established by evidence to have been already known to the Receiving Party at the time of its disclosure to the Receiving Party and is not known by the Receiving Party to be the subject of an obligation of confidence of any kind;
- (c) independently developed by the Receiving Party without any use of or reference to the Confidential Information of the Disclosing Party as established by evidence that would be acceptable to a court of competent jurisdiction; or
(d) received by the Receiving Party in good faith without an obligation of confidence of any kind from a Third Party, provided that the Receiving Party had no reason to believe that such Third Party was not lawfully in possession of such information or that such information was subject to any obligation of confidence of any kind, but in each such case, only until the Receiving Party subsequently comes to have reason to believe that such information was subject to an obligation of confidence of any kind when originally received.
“Data” means all of the data and information, including the data and information set out in Appendix A attached hereto that Provider collects, generates, processes and/or receives in respect of each Motor Vehicle, as identified by its VIN, that Provider repaired and/or reconditioned during the Term. “Disabling Code” means any virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or similar software that is intended or designed to have the effect of disabling, deleting, erasing, denying authorized access to, permitting unauthorized access to, repossessing, damaging, degrading, destroying, corrupting or otherwise affecting or interring with the operation of the CARFAX Canada Web Service, or the normal use of any of CARFAX Canada’s hardware, software or systems or any data or files on or used in conjunction with any of the aforementioned. “Governmental or Regulatory Authority” means any national, federal, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity having jurisdiction over either Party, or any other Person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities. “Insolvent” means, in respect of a Party, that such Party:
- (a) has admitted in writing its inability to pay its debts generally or as they become due or otherwise acknowledges in writing its insolvency;
- (b) ceases or threatens in writing to cease to carry on business in the ordinary course;
- (c) institutes any proceeding, takes any corporate action, or executes any agreement to authorize its participation in or the commencement of any proceeding seeking: (i) to adjudicate it a bankrupt or insolvent; (ii) liquidation, dissolution, winding-up, reorganization, arrangement, protection, relief or composition of it or any of its property or debts or making a proposal with respect to it under any law relating to bankruptcy, insolvency, reorganization or comprise of debts or other similar laws; or (iii) appointment of a receiver, trustee, agent, custodian or other similar official for it or for any substantial part of its properties and assets; orhas any proceeding privately commenced by a creditor or any other Person against or affecting such Party (except during any period up to a maximum of 45 days during which such proceeding is being contested in good faith by appropriate proceedings by such Party) seeking: (i) to adjudicate it a bankrupt or insolvent; (ii) liquidation, dissolution, winding-up, reorganization, arrangement, protection, relief or composition of it or any of its property or debts or making a proposal with respect to it under any law relating to bankruptcy, insolvency, reorganization or compromise of debts or other similar laws; or (iii) appointment of a receiver, trustee, agent, custodian or other similar official for it or for any substantial part of its properties and assets.
“Losses” means loss, cost, expense (including reasonable attorney fees, experts’ fees and costs) and other liability arising from any Third Party actions, suits, claims, demands, judgments or similar proceedings and any damages, assessments or penalties incurred.
“Motor Vehicle” means any one of the following: (a) an automobile; (b) a light, medium or heavy-duty truck; or (c) a sports utility vehicle, and “Motor Vehicles” means any one or more of the foregoing.
“Party” means CARFAX Canada or Provider, and “Parties” means collectively, CARFAX Canada and Provider.
“Permitted Uses” means any use of the Data in connection with CARFAX Canada’s and/or its Affiliates’ data and/or vehicle history and/or valuation products and/or services.
“Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
“Personal Information” has the meaning ascribed to it in the Personal Information Protection and Electronic Documents Act S.C. 2000, c.5 (“PIPEDA”).
“Term” means collectively, the Contract Initial Term and all Contract Renewal Terms.
“Third Party” means a Person other than CARFAX Canada or Provider.
“VIN” means Vehicle Identification Number.
Subject to these Terms and Conditions, Provider hereby grants to CARFAX Canada a fully paid up, worldwide, royalty-free, exclusive, transferable, sublicensable and perpetual licence to use the Data for the Permitted Uses.
Historical and Weekly Data Deliveries
Within ten (10) Business Days following the execution of this Agreement, Provider will deliver to CARFAX Canada, electronically in a format and using an electronic method of delivery agreed to by the Parties, all Data then in Provider’s possession or control that Provider collected, generated, processed and/or received prior to and since the Effective Date. Thereafter during the Term, no later than 4:00 am EST on Friday each week, Provider will deliver to CARFAX Canada, electronically in a format and using an electronic method of delivery agreed to by the Parties, all Data then in Provider’s possession or control that Provider collected, generated, processed and/or received since the then-immediately-preceding delivery of Data by Provider to CARFAX Canada pursuant to this Section 3.
Intellectual Property Rights and Limitation of Use
(a) No Transfer of Ownership. CARFAX Canada acknowledges and agrees that no Data is being sold, transferred or assigned to CARFAX Canada under this Agreement and that CARFAX Canada’s sole rights to the Data are those licence rights set out in Section 2 of this Agreement.
(b) Unfettered Access to Data. At all times during the Term, Provider will permit CARFAX Canada to have full, free and unfettered access to the Data, even if there is a dispute between the Parties.
Support Services; Correction of Data; No Fees
(a) If at any time CARFAX Canada, in its reasonable discretion, determines that any Data received from Provider is incorrect, inaccurate and/or otherwise unusable by CARFAX Canada, CARFAX Canada may contact Provider and Provider shall promptly assist CARFAX Canada in resolving all such discrepancies to CARFAX Canada’s reasonable satisfaction.
(b) CARFAX Canada will not be required to pay Provider any fees, charges or other amounts for the receipt and/or use of the Data, or any other obligations of Provider and/or benefits received by CARFAX Canada, in connection with the Agreement.
Term; Termination; Post-Termination Obligations; Survival
(a) Term. The Agreement will be effective as of the Contract Start Date and will continue in effect during the Term, unless terminated earlier in accordance with these Sections 6(b) or 6(c).
(b) Termination by CARFAX Canada. CARFAX Canada may terminate the Agreement in its entirety for any reason and at any time by providing at least 30 days’ prior written notice to Provider.
(c) Termination for Cause. Either Party may terminate this Agreement for cause by providing written notice to the other Party of such termination if such other Party: (i) becomes Insolvent; or (ii) has committed a material breach of this Agreement and fails to cure such material breach within 30 days following receipt of written notice of the material breach from the other Party, provided, however, that a Party may not terminate this Agreement pursuant to this Section 6(c) if the breaching Party has cured the material breach that gave rise to the termination right on or prior to its receipt of the notice of termination. The Party wishing to terminate this Agreement will include in the notice of termination the date on which such termination will be effective in accordance with this Section 6(c).
(d) Post-Termination Obligations. Upon the termination or expiration of this Agreement for any reason, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party as set forth in Section 11. For certainty, notwithstanding the expiration or termination of this Agreement for any reason, CARFAX Canada shall not be required to return to Provider or destroy or cease using the Data, in whole or in part.
(e) Survival. The expiration or termination of this Agreement for any reason will not relieve either Party of its obligations incurred prior to such expiration or termination, and the following sections shall survive the expiration and termination of this Agreement for any reason: Section 1 (Certain Definitions), Section 2 (Data Licence), this Section 6(e), Section 7 (Disclaimers), Section 8 (Representations, Warranties and Covenants) Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11 (Confidential Information), and Section 12 (General Provisions).
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF EITHER PARTY, WHETHER EXPRESS OR IMPLIED, OR WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT.
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, BOTH PARTIES EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING IMPLIED WARRANTIES OF ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE.
(c) IN NO EVENT WILL CARFAX Canada BE LIABLE TO PROVIDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF USE, LOSS OF TIME OR LOSS OF PROFITS OR INCOME), WHETHER BASED IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, BASED UPON, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CARFAX Canada HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Representations, Warranties and Covenants
(a) Mutual Representations, Warranties and Covenants. Each Party represents and warrants to and covenants with the other Party that:
- (i) such Party is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own and operate its business and properties and to carry on its business as such business is now being conducted and is duly qualified to do business in all jurisdictions in which qualification is necessary in order to transact its business and perform its obligations set out in this Agreement;
- (ii) such Party has full power, authority and right to execute and deliver this Agreement and to perform its obligations hereunder and the execution, delivery and performance of this Agreement by such party have been duly authorized by all necessary corporate action on the part of such Party;
- (iii) the execution, delivery and performance of this Agreement by such Party and the consummation of the transactions contemplated herein do not and will not contravene the organizational documents of such party (including any certificate of incorporation, certificate of organization, by-laws, operating agreement or charter, as applicable) and do not and will not conflict with or result in a breach or violation of: (A) any indenture, agreement, instrument, judgment, decree, order or ruling to which such Party is a party or is otherwise subject that would materially adversely affect such Party’s ability to perform its obligations under this Agreement: (B) any Applicable Laws; or (C) any obligation of such Party to another Person; and
- (iv) as of the Contract Start Date, there is no outstanding litigation, arbitration or other dispute to which such Party is a party, and to such Party’s knowledge, there are no potential litigation, arbitration or other disputes that, if decided unfavourably to such Party, will likely have a material adverse impact on the ability of such Party to comply with its obligations under this Agreement.
- (i) Provider will not insert, or allow any Third Party to insert, any Disabling Code into the Data;
- (ii) the Data has been collected and compiled in accordance with applicable industry standards and all Applicable Laws;
- (iii) the Data does not, and will not, at any time during the Term contain any Personal Information; and
- (iv) the performance by Provider of its obligations hereunder does not and will not during the Term infringe, violate or constitute a misappropriation of any rights of any Person.
- (i) during the Term, Provider will promptly notify CARFAX Canada of any Claim made against Provider alleging that: (i) Provider’s performance of its obligations in accordance with this Agreement infringes, violates or constitutes a misappropriation of any Intellectual Property Rights of any Person; or that (ii) the Data contains Personal Information; and
- (ii) throughout the Term, Provider will comply with all Applicable Laws in its dealings with CARFAX Canada and will provide the Data in accordance with the terms of this Agreement and to the extent permitted by law.
Provider will indemnify, defend and hold harmless the CARFAX Canada Indemnitees form and against any and all Losses suffered or incurred by the CARFAX Canada Indemnitees arising from any Claim based upon, arising from or in connection with: (i) CARFAX Canada’s use of the Data in compliance with the Permitted Uses infringing, violating or misappropriating any Intellectual Property Rights of any Person; and/or (ii) the Data containing any Personal Information.
Limitation of Liability
In no event whatsoever will CARFAX Canada’s total liability in the aggregate, including for any damages, Claims or Losses whatsoever, exceed $1,000. This Section 10 will apply irrespective of the nature of the cause of action, demand or Claim, including breach of contract (including fundamental breach), tort (including negligence) or any other legal theory.
(a) Each Party, in its capacity as a Receiving Party:
- (i) will use at least the same degree of care in safeguarding and maintaining the confidentiality of all Confidential Information of the Disclosing Party that the Receiving Party uses to safeguard and maintain the confidentiality of its own Confidential Information of a similar nature, but in no event will a Receiving Party exercise less than due diligence and reasonable care;
- (ii) will not release, disclose, divulge, sell or distribute any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except that the Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s employees or contractors or the employees or contractors on a “need to know basis”, provided the Receiving Party first instructs such employees or contractors, as applicable, to maintain the confidentiality of such Confidential Information and such employees or contractors, as applicable, are bound by written confidentiality obligations that are no less onerous than those contained in this Section 11;
- (iii) may only use and copy the Disclosing Party’s Confidential Information as is necessary to carry out the Receiving Party’s activities contemplated by the Agreement and for no other purpose. Without limiting the generality of the foregoing, a Receiving Party shall not use the Disclosing Party’s Confidential Information in any way that is, directly or indirectly, detrimental to the Disclosing Party; and
- (iv) will not alter or remove from any Confidential Information of the Disclosing Party.
(c) Obligation to Return or Destroy Confidential Information. Upon the earlier of: (i) the Disclosing Party’s written request; and (ii) the expiration or termination of the Agreement for any reason, regardless of whether a dispute may exist, the Receiving Party will return or destroy (as instructed by the Disclosing Party) all Confidential Information of the Disclosing Party in its possession or control and cease all further use thereof. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under the Agreement or pursuant to Section 11(c).
(d) For purposes of the Agreement, the Receiving Party will be deemed to have made any disclosures of the Disclosing Party’s Confidential Information that are made by its employees, contractors, advisors or agents, and to have engaged in any uses of the Disclosing Party’s Confidential Information by its employees, contractors, advisors or agents.
(a) Assignment. Neither Party may assign or transfer all or any part of this Agreement or its rights or obligations under this Agreement to any other Person without the prior, express written consent of the other Party, and any purported assignment or transfer without such consent will be null and void. Notwithstanding the foregoing, CARFAX Canada may, without the prior consent of Provider, assign any of CARFAX Canada’s rights and/or obligations under this Agreement to any of its Affiliates, or the surviving corporation with or into which CARFAX Canada merges or consolidates, or an entity to which CARFAX Canada transfers all, or substantially all, of its voting securities or assets. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
(b) Time is of the Essence. Time is of the essence in respect of Provider’s performance of its obligations under the Agreement.
(c) Governing Law. This Agreement is a contract made under and will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario.
(d) No Waiver. Neither Party’s failure to insist upon or enforce strict performance of any provision of the Agreement will be construed as a waiver of any provisions or right. Any waiver of the terms or conditions of the Agreement, in whole or in part, must be in writing and signed by an authorized officer of a Party expressly referencing the applicable provisions of the Agreement. Waiver of any provision of the Agreement in one instance will not preclude enforcement thereof on future occasions.
(e) Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court of competent jurisdiction, then: (i) such provision will be, solely to the extent of such invalidity or unenforceability, as applicable, deemed omitted, and the remaining provisions will continue in full force and effect; and (ii) such determination will not affect the legality, validity or enforceability of the remaining provisions of the Agreement or the legality, validity or enforceability of such provision in any other jurisdiction.
(f) Amendments. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings.
(g) Priority of Documents. In the event of any conflict or inconsistency between the provisions of the Application and these Terms and Conditions, the provisions of these Terms and Conditions shall prevail.
(i) Headings and Extended Meanings. The division of these Terms and Conditions and the Application into sections is for convenience of reference only and does not affect the construction or interpretation of these Terms and Conditions or the Application. Wherever the words “include”, “includes” or “including” are used in the Application and these Terms and Conditions, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list.
(j) Notices. All notices to Provider required or permitted under the Agreement will be provided to the Provider contact at the mailing address or email address (at CARFAX Canada’s discretion) set forth in the Application, and will be deemed to have been provided on the date on which the notice was sent. All notices to CARFAX Canada required or permitted under the Agreement will be provided via registered mail to:
CARFAX Canada Corporation
100 Kellogg Lane Suite #301
Attention: Legal Department
and will be deemed to have been provided on the date of CARFAX Canada’s receipt. Each Party will promptly notify the other Party in writing if any of its contact information changes.
(k) Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and terminates and supersedes all previous agreements, whether oral or written, relating to the same subject matter.
(l) Counterparts and Electronic Execution. The Application may be executed in any number of counterparts, each of which will be deemed to be an original, and all of which taken together will be deemed to constitute one and the same instrument. Delivery of an executed signature page to the Application by either Party by electronic transmission will be as effective as delivery of a manually executed copy of the Application by such Party. APPENDIX A
This Appendix A sets out and describes the types of data and information that comprise and form part of the Data.
- Odometer Reading
- Colour of Vehicle
- Loss Date
- Estimate Date
- Estimate Commit Date
- Supplemental Date
- Supplemental Number
- Estimate Source
- Type of Loss
- Impact Location 1
- Impact Location 2
- Total Loss Indicator
- Air Bag Deployed
- Frame Damage Indicator
- Structural Repair Indicator
- Total Parts Dollars
- Total Labour Dollars
- Repair Line Item Number
- Repair Line Item Indicator
- Labour Operation
- Line Description
- Part Type
- Labour Hours
- Total Repair Cost
- Total Labour Hours
- Structural Hours
- Option List
- Labour Operation
- Labour Dollars
- Labour Hours
- Cost Type
- Total Cost
- Labour Rate