Terms & Conditions
Usage of Impel’s suite of Products (as hereafter defined) is subject to the following Terms and Conditions (as updated from time to time, these “Terms and Conditions”), which may change from time to time, with reasonable notice. These Terms and Conditions are incorporated into the Activation Agreement between you and Impel.
DEFINITIONS. The following terms shall have the following meanings as used in this Agreement:
“Agreement”: Means any Agreement between a Client and Company made for the usage of any of Company’s Products.“Client” or “you”: Means any individual of business which makes use of any of the Company’s Products.
“Company”, “we”, “us” or “Impel”: Means Augmented Reality Concepts, Inc., a Delaware corporation.
“Product”: Means any software application developed by Company that is used or utilized by you.
“Location”: Means one structure or building at a certain location with a single street address of Client utilizing the Products.
“URLs”: Means particular websites maintained or controlled by Client for which Client is authorized to use the Product.
“Services”: Means the services and work that Impel will perform on behalf of Client with respect to the Products and content created by use of the Products.
- TERMS OF PAYMENT. Client shall pay all charges and applicable sales tax to Company by pre-approved credit card or ACH debits. Client hereby authorizes Company to initiate debits to Client’s checking or savings account indicated at Client’s depository financial institution and to debit the same to such account. This authorization shall remain in full force and effect until Company has received written notification from Client of its termination in accordance with Section 6 hereof as to afford Company and the depository bank a reasonable opportunity to act on it. If credit card payments are authorized, that authorization shall continue and shall remain in full force and effect until cancellation, termination or expiration of any Agreement. Client agrees to execute and provide to Company all authorizations and other documents necessary to effect the foregoing payments. Client shall be charged a 1.5% late payment fee for each month that payment is not received by the first day of each monthly period. Payment for the first month is due 15 days from the commencement of the Term of this Agreement. Payment for subsequent months is due by the first day of each month.
- PRODUCT CHANGES. Company may at any time change the specifications and features of the Products. Company may upgrade the Products and substitute the upgrades for the previous version of Products at any time. Nothing in this Agreement shall require that Company maintain after termination of this Agreement compatibility of any content generated by Client.
- HARDWARE. Any hardware purchased by Client from Company is covered by the manufacturer’s warranty. Company shall not be held liable to Client for any defects or flaws in hardware.
- INTELLECTUAL PROPERTY & LICENSE. During the term of Client’s agreement with Impel (provided Client does not breach this agreement), Client shall be permitted on a non-exclusive basis to utilize the Products, and Impel may provide assistance regarding same as part of the Services. As part of the Services, Client authorizes and directs Impel to, on Client’s behalf, obtain photographs, videos and other copy from the motor vehicle manufacturers with whom Client has an agreement (in the singular an “OEM” or if more than one “OEMs”), including items from the OEM directly, or from the OEM or OEMs websites and other publicly displayed areas on the Internet and otherwise, to be used in any content created or displayed by, for, or on behalf of Client. Client represents and warrants that Client has the necessary intellectual property rights from its OEM or OEMs to allow Impel to provide the Services, and to take and use the OEM materials for use as applicable with the Products, and the Client will inform Impel of any restrictions or limits as to the use of the OEM intellectual property, and Impel shall abide by same. Client acknowledges and agrees that the Services are being provided on behalf of Client and not by Impel for its own benefit. Client shall have the right to utilize the created content whether before or after the termination of this Agreement, subject to the other terms and conditions herein. Except for the foregoing, Company retains the ownership of all rights, title and interest in and to the Product and all other proprietary rights related thereto as well as all rights, title, and interest in all developments of and enhancements to the Product. Client does not acquire by virtue of this Agreement or otherwise any right, title or interest in or to the Product or any other intellectual property rights, other than the limited right as specifically granted by this Agreement to use such rights to the extent expressly set forth herein and only for the purposes herein set forth. Company shall have the non-exclusive, non-revocable license in perpetuity to any photographs uploaded by Client to create content, and to any content so created by use of the Products, including the right of sub- license and In order to create content and for Company to provide the Product and Services, as well as other products and/or services to Client and possibly third parties, and marketing for same, Client hereby grants a license of any rights Client may have in and to the specific motor vehicles used for same and any rights the Client has from the manufacturer(s) of such motor vehicles. Company shall have the right to use the name/logo of Client in Company marketing materials, which may include but is not limited to, the Company’s website.
- TERM AND TERMINATION. Upon expiration of the Initial Term, this Agreement shall automatically renew for subsequent periods equal in length to the Initial Term, unless either party gives proper written notice of non-renewal to the other party where such notice of non-renewal is delivered by a date which is on a business day and at least one month prior to the expiration of the then-current term (for example if the last day of the January is a Saturday, and the Client sent a notice of termination on that Saturday, it would not be effective to terminate the relationship until the end of March – Client would have had to send notice on Friday, January 30th to terminate by end of February). In addition, this Agreement may be terminated prior to the expiration of the then-current term upon the election of one party in the event of material breach by the other party of any of the terms and conditions of this Agreement which is not cured within five days of written notice by the non-breaching party of that breach or by Company immediately upon any failure of payment pursuant to credit card or ACH as contemplated hereby. Any early termination by Client shall not result in any pro-rata refund for partial months.
- LIMITATIONS ON USE. Client shall not resell any content created by use of the Products or allow access to the Products except for the sole benefit of Client in the conduct of the Client’s regular business at the Location(s) as designated herein. Following the termination of this Agreement, Client shall not access or utilize the Products production and distribution tools in any manner.
- PRICING. Pricing under this Agreement is firm for one year. Thereafter, Company may raise pricing at the Company’s sole discretion. Upon completion of any trial period, unless otherwise noted, Company will invoice Client list price for the Products.
- FORCE MAJEURE. Either party shall be excused for delay in the performance of any obligations hereunder when such delay is the result of or attributable to the elements, acts of God, governmental authority, strikes, lock-outs, labor troubles, failure of power, riots, insurrection, war, delays in transportation, manufacturer’s or supplier’s delays in providing parts, products or solutions to problems, or any other cause beyond their reasonable control provided, however, that in any such event, both parties agree to make a good faith effort to meet their obligations hereunder, and further provided that the party seeking to be excused promptly notifies the other party of the event causing, or expected to cause, the delay.
- GOVERNING LAW AND VENUE. This Agreement shall be construed and enforced in accordance with the laws of the State of New York without regard to conflicts of law principles. Any legal action, whether State or Federal, shall have an exclusive venue in Onondaga County, New York, and Client agrees that courts in such venue shall have personal jurisdiction over Client for this purpose.
- CONFIDENTIALITY. All terms and conditions of this Agreement are confidential and shall not be disclosed by the Client to any 3rd parties, except as may be necessary to effectuate the terms of this Agreement.
- WARRANTIES. Client represents and warrants that the content, data, or information that is inputted, submitted, uploaded or otherwise transferred or provided by Client, or that the Client authorizes Impel to use or obtain as part of the Services pursuant to this Agreement, and any content, data, or information used or displayed on or by the Company’s servers or that is produced, in whole or in part, directly or indirectly, through any use of the Products or as part of the Services in any manner (collectively, the “Content”) does not infringe on the copyright or other intellectual property rights of any third person or other entity. Client further warrants that the Content does not contain any libelous or slanderous materials. Client warrants that it has all necessary right, title and interest to use any trademarks, service marks, logos, graphics, portraits, photographs, pictures and artwork contained in the Company reserves the right to remove any Content from its servers for any reason, without prior notice. Client represents and warrants that the Services and this Agreement and the Client’s use of the Product, as envisioned by this Agreement, does not violate any third party agreement of the Client’s including any agreement or policy of the OEM or OEMs that the Client is affiliated with as a dealer or otherwise. Client represents and warrants that: (i) no Content is false, inaccurate, misleading, fraudulent, or untrue in any way and that such Content accurately depicts any products or services offered to customers or prospective customers of the Client, and (ii) Company has no obligation to analyze, inspect, audit, validate, or otherwise review any Content.
- INDEMNIFICATION. Client agrees to defend, hold harmless and indemnify the Company and its affiliates, and their respective employees, officers, directors, managers, stockholders, members, representatives and agents for any and all claims, causes of action, damages, demands, fines, losses, deficiencies, judgments, interest, awards, fines, costs, expenses, liabilities, and penalties of any kind (including reasonable attorney and expert fees) directly or indirectly arising out of, based upon, resulting from or in connection with (a) the Client’s breach of any representation, warranty or covenant made by Client pursuant to this Agreement, (b) Client’s use of the Products, (c) Client’s breach or violation of any of the terms of this Agreement, any terms of Client’s agreement with the OEM or OEMs with which Client has an agreement, or any applicable laws and regulations, including the TCPA and other state and federal telemarketing and telephonic consumer protection laws, (d) any claim that any Content violates applicable laws or regulations, or any rights of another person or entity, including without limitation any intellectual property rights (including all patent rights, copyrights, trademarks, trade secrets or other proprietary rights), moral rights or rights of publicity or privacy, or (e) any claim that Content, is false, inaccurate, misleading, fraudulent, or untrue.
- DISCLAIMERS; LIMITATION OF LIABILITY. The Products are offered “AS IS.” Company makes no representations of any kind, whether express or implied or otherwise regarding the Products or Services. The Company disclaims all warranties, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, the Company explicitly disclaims all liability related to any Content, including without limitation, any liability related to Content being false, inaccurate, misleading, fraudulent, or untrue. The Company makes no warranty that the Products will meet your requirements, or that they will be uninterrupted or error-free. Notwithstanding the foregoing the Company may make any changes to the Products it deems fit at any time without notice to you. Company will not be liable to Client or any third party claiming through Client for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use, revenue, or data, or cost of substitute services, or other economic loss), whether or not Company has been advised of the possibility of such damages. Notwithstanding any other provision of this agreement, in no event will Company’s liability to Client or any third party in connection with this agreement exceed the total amount paid by Client to Company in the six- month period preceding such claim or action arising.