Master Subscription Terms
The EPIC Auto, Inc. (“EPIC”) terms and conditions below (“Master Subscription Terms” or “Agreement”) is a binding contract between Customer and EPIC. These Master Subscription Terms govern your access to and use of any of the services and products offered by EPIC.
These terms, together with all exhibits and schedules incorporated herein, as well as the product-specific terms and conditions (“Additional Product Terms”) found either attached to the Order Form or incorporated by reference from www.withepic.com/legal, govern the subscription of each EPIC Product specified in the Order Form. The Order Form may also include various attachments (“Attachments”) that provide additional governance.
THESE MASTER SUBSCRIPTION TERMS TAKE EFFECT AS OF THE DATE SET FORTH IN YOUR APPLICABLE ORDER FORM FOR THE SERVICES OR PRODUCTS OR WHEN YOU BEGIN ACCESSING OR USING THE SERVICES OR PRODUCTS ON EPIC’S PLATFORM.
BY EXECUTING AN APPLICABLE ORDER FORM OR BY ACCESSING OR USING THE SERVICES OR PRODUCTS YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE MASTER SUBSCRIPTION TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE MASTER SUBSCRIPTION TERMS AND, IF ENTERING INTO THESE MASTER SUBSCRIPTION TERMS FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE MASTER SUBSCRIPTION TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE MASTER SUBSCRIPTION TERMS, PLEASE DO NOT SELECT THE “I ACCEPT” BUTTON. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES OR PRODUCTS.
1. DEFINITIONS. The following capitalized terms, when used in these Master Subscription Terms, any Additional Product Terms, or any other Attachments, will have the corresponding meanings provided below:
1.1 “API” means an application programming interface where Customer can access EPIC Products via a software integration between Customer’s DMS, or other related system, and EPIC, as an alternative to accessing EPIC Products via a web browser.
1.2 “Activation Date” means the start date of the Subscription Term as specified in the Order Form, or, if unspecified, the earlier of: (a) activation of the Customer by EPIC, or (b) thirty days after the Order Form is signed by the Customer.
1.3 “Additional Product Terms” has the meaning set forth in the preface above.
1.4 “Administrative Authorized User” or “Administrator” means an Authorized User granted administrative rights by the Customer to manage an EPIC Product and to act on the Customer’s behalf under these terms and any relevant Additional Product Terms or Attachments.
1.5 “Affiliate” means any entity that controls, is controlled by, or is under common control with EPIC or the Customer, either directly or indirectly.
1.6 “Analytics Data” means data generated from Customer’s use of any EPIC Product, excluding Consumer Data, including logs, performance, usage, and other web analytics data.
1.7 “Attachments” has the meaning set forth in the preface above.
1.8 “Authorized Customer Location” means Customer’s physical location as specified in the applicable Order Form.
1.9 “Authorized Users” means Customer Personnel who have been issued Credentials to access an EPIC Product in accordance with these Master Subscription Terms, and any applicable Additional Product Terms or Attachments.
1.10 “Confidential Information” means all information or materials, whether communicated orally or in writing, that are provided or disclosed by the Disclosing Party to the Receiving Party and are designated as confidential or should reasonably be considered confidential given the context of the information and the conditions of disclosure. Specifically, (a) EPIC’s Confidential Information encompasses EPIC Products, related materials, and any information tied to EPIC’s business operations, including operations, customer details, contractors, distributors, software, technology, products, services, or marketing strategies, as well as any details outlined in these Master Subscription Terms, any Additional Product Terms, Attachments, and any pricing information; and (b) Customer’s Confidential Information includes all Customer Data. However, Confidential Information does not include data that: (1) becomes publicly available through no fault of the Receiving Party; (2) was already rightfully known or possessed by the Receiving Party without an obligation of confidentiality; (3) is received from a third party not bound by confidentiality obligations and without breach of such obligations; (4) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (5) is made available to third parties by the Disclosing Party without a confidentiality restriction.
1.11 “Consumer” means a direct customer of EPIC’s Customer.
1.12 “Consumer Information” means any information that is classified as “personal information,” or any other substantially similar classification, under any applicable Privacy Laws.
1.13 “Consumer Payment” or “Consumer Payment Transaction” means a payment transaction to a vehicle owner initiated by Customer through the EPIC Product to remit the vehicle’s equity value amount.
1.14 “Control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interests of the respective entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise.
1.15 “Credentials” means any information required to securely access or use an EPIC Product (e.g. usernames and passwords).
1.16 “Cure Period” means a define period of time a Party has to reasonably resolve their material breach of the Order Form, which for these purposes include the Master Subscription Terms, any Additional Product Terms or any Attachments.
1.17 “Customer” means the EPIC customer that is a party to the applicable Order Form.
1.18 “Customer Data” means (a) any data, content, or information held within a Customer Instance of an EPIC Product, and (b) any data received directly from the Customer, the Customer’s systems, or any Third-Party Licensor’s systems, such as Customer DMS Data or Customer LMS Data, which may contain Consumer Information. Customer Data specifically does not include Analytics Data.
1.19 “Customer DMS Data” means Customer Data that is accessed by an EPIC Product via an integration with Customer’s DMS.
1.20 “Customer LMS Data” means Customer Data that is accessed by an EPIC Product via an integration with Customer’s LMS.
1.21 “Customer Instance” means the individual account that EPIC provides to Customer for the applicable EPIC Product. For avoidance of doubt, one Customer Instance is required for each Authorized Customer Location.
1.22 “Customer Mark” means any name, logo, trademark, service mark, slogan, tagline or related mark used for marketing or identification of Customer or any of Customer’s affiliates.
1.23 “Customer Representative” means any employee, agent, contractor, or other representative of the Customer, including Authorized Users. All actions and inactions, including omissions, whether intentional or otherwise, of Customer Representatives are expressly those of the Customer.
1.24 “Customer Resources” means Customer-utilized systems, content or materials, without limitation, that may be, as applicable, integrated with an EPIC Product or transferred, uploaded or otherwise transmitted to an EPIC Product.
1.25 “Disclosing Party” means the Party that provides Confidential Information to the Receiving Party in connection with the Order Form.
1.26 “DMS” means a dealer management system, which is a management information system that may be used by Customer.
1.27 “Email Notice” means: (a) for notices sent by the Customer to EPIC, an email directed to the designated email address for the EPIC Product as specified herein; or (b) for notices sent by EPIC to the Customer, an email sent to the email address that EPIC has on record for the related EPIC Product.
1.28 “EPIC” means the entity that is a party to the applicable Order Form that provides the subscribed EPIC Product to Customer. Such entity may also be referenced in Additional Product Terms or Attachments by its legal name, EPIC Auto, Inc., instead of as “EPIC”.
1.29 “EPIC Mark” means any name, logo, trademark, service mark, slogan, tagline or related mark used for marketing or identification of EPIC or any of EPIC’s affiliates.
1.30 “EPIC Product” or “EPIC Products” means the EPIC software product or service identified on the applicable Order Form. The Order Form may cover more than one EPIC Product. Solely with respect to any use restrictions regarding the applicable EPIC Product as set forth in these Master Subscription Terms, any Additional Product Terms or any Attachments, the term “EPIC Product” will include any Third-Party Interfaces applicable to or integrated with such EPIC Product.
1.31 “Fee” or “Fees” means, individually or collectively, fees due and payable from Customer to EPIC or EPIC Affiliates pursuant to the applicable Order Form, including Subscription Fees and any other fees.
1.32 “Feedback” means any information, suggestions, ideas, enhancement requests, recommendations, comments and other feedback that Customer or any Customer Representative may disclose, transmit, suggest or offer to EPIC or its Affiliates with respect to any EPIC Product.
1.33 “In-Application Notice” means: an electronic notification within a user interface of the EPIC Product that is made to an Administrative Authorized User of Customer.
1.34 “Including” means “including, without limitation”.
1.35 “Laws” means all applicable federal, state and local laws, regulations, rules, ordinances and other decrees of any governmental authority.
1.36 “Legal Notice” means written notification to the following addressees: (a) if from Customer to EPIC, then to EPIC, Attention: Legal Department, 1919 S. Shiloh Rd, Suite 310, Garland, Texas 75042, with a copy sent via email to the EPIC email address used for Email Notice and, if applicable, to the EPIC address specified in the applicable Order Form; or (b) if from EPIC to Customer, then to the address that EPIC has on file for Legal Notices to Customer, or if no such address is on file, to the address of an Authorized Location, with Attention: Legal Department.
1.37 “Lien Release” or “Lien Payment Transaction” means a payment transaction to an applicable Third-Party on a vehicle that is initiated by Customer through the EPIC Product to release a vehicle lien.
1.38 “Lien Placement” means adding a lien in the name of Customer on a vehicle title that is initiated by Customer through the EPIC Product.
1.39 “LMS” means a lender management system, which is an enterprise management information system used by a Lender.
1.40 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.41 “Master Subscription Terms” has the meaning set forth in the preface above.
1.42 “Mobile Application” means a mobile or tablet website or application.
1.43 “Modifications” means changes, upgrades, updates, modifications or enhancements to, or derivative works of, an EPIC Product.
1.44 “Order Form” means the ordering document between EPIC and Customer, under which Customer subscribes to one or more EPIC Products. The Order Form may be a written or an electronic agreement, and may also include online forms or terms that have been “accepted” or “agreed” by Customer.
1.45 “Party” means Customer or EPIC, individually, as applicable.
1.46 “Parties” means Customer and EPIC, collectively, as applicable.
1.47 “Payment Account” means an account that Customer establishes through EPIC to enable the payment processing functionality of the EPIC Product.
1.48 “Personnel” means agents, employees, officers, directors or contractors employed, engaged or appointed by a Party hereunder.
1.49 “Privacy Laws” means all applicable privacy laws and information security laws, and any other applicable federal, state, provincial or local laws, as they exist and are amended from time to time, relating to: (a) data privacy, security, integrity, confidentiality, communications, use, collection, processing and storage; and (b) spamming and other unsolicited communications, including, as applicable, the U.S. Gramm-Leach-Bliley Act of 1999 (e.g. 16 C.F.R. Part 313 (Privacy Rule) and 16 C.F.R. Part 314 (Safeguards Rule)), and the U.S. Telephone Consumer Protection Act of 1991 (TCPA).
1.50 “Quoted Amount” means the loan payoff quote for a given vehicle presented to Customer through the EPIC Product when Customer initiates a Transaction, based on information received by EPIC from the applicable Third-Party.
1.51 “Quoted Other Information” means, individually or collectively, other such information, as available, related to a loan, title ownership, lien release, title release, title status of consumer insurance for a given vehicle presented to Customer through the EPIC Product when Customer initiates a transaction, based on information received by EPIC from the applicable Third-Party or otherwise.
1.52 “Receiving Party” means the Party that receives Confidential Information from the Disclosing Party in connection with the Order Form.
1.53 “Subscription” means the right to access and use an EPIC Product during the applicable Subscription Term, subject to payment of Fees as set forth in the applicable Order Form.
1.54 “Subscription Fees” means the periodic (typically monthly) fees for the Subscription.
1.55 “Subscription Term” means the period of time specified on the applicable Order Form when the applicable Subscription is in effect.
1.56 “Taxes” means all applicable national, state or local sales or use taxes or value added taxes.
1.57 “Third-Party” means an entity or person that is neither a Party, nor an Affiliate of a Party.
1.58 “Third-Party Interface” means any interface utilized for any integration between an EPIC Product and a Third-Party Licensor’s product.
1.59 “Third-Party Licensor” means any Third-Party that makes available Third-Party Materials.
1.60 “Third-Party Materials” means data, content, software or other materials from a Third-Party Licensor that are made available by, through or in connection with the applicable EPIC Product. EPIC may license but does not own Third-Party Materials.
1.61 “Third-Party Terms and Conditions” means any applicable terms and conditions or other agreements governing the access and use of the applicable Third-Party Materials.
1.62 “Title Transfer” or “Express Title” means a transfer of vehicle ownership Transaction initiated by Customer through the EPIC Product to transfer a vehicle’s ownership to Customer’s ownership, evidence by issuance of a vehicle title in Customer’s legal name.
1.63 “URL” means the address of a web page.
2. SUBSCRIPTION.
2.1 Subscription Term. Except as otherwise set forth on the applicable Order Form, the Subscription Term for an EPIC Product will commence on the Activation Date and will expire at the end of the period specified in such Order Form. Thereafter, unless such Order Form expressly states otherwise, the Subscription Term will automatically and indefinitely renew for additional subsequent terms equal in length to (i) the length of time specified in such Order Form or (ii) otherwise the length of time of the initial Subscription Term, until the Subscription is canceled by a Party in accordance with the cancellation requirements contained in this Master Subscription Terms.
2.2 Access to EPIC Products. During the Subscription Term, EPIC will make the applicable EPIC Product available through a website, URL or API for Customer’s and its Authorized Users’ access and use. Except as otherwise expressly provided in the applicable Order Form, any Additional Product Terms and/or any applicable Attachments, Customer will be solely responsible for any software, hardware, connection, and other equipment, along with technical specifications which EPIC may update from time to time, in each case as necessary for Customer and its Authorized Users to access and use any EPIC Product.
2.3 Authorized Users. As necessary to access an EPIC Product, and subject to any limitations on the number of Administrative Authorized Users and other Authorized Users in the applicable Order Form, EPIC will issue administrative Credentials to Customer, whereupon such Administrative Authorized Users will be enabled to issue Credentials to additional Authorized Users. Customer will keep Credentials confidential and secure, and prevent such Credentials from being disclosed to or used by any person or party other than the Authorized Users to whom the Credentials are issued. Customer must immediately report in writing to EPIC any unauthorized use or disclosure of any Credentials or any other account information of Customer. Customer will be responsible and liable for all actions taken through or under any Credentials issued to Customer in connection with the use of any EPIC Product, whether such actions are taken by an Authorized User or otherwise.
2.4 Customer Locations and Instances. Unless otherwise specifically set forth on the applicable Order Form, Subscriptions to EPIC Products are provided on a “per-location” basis, meaning that each such Subscription is specific to, and may only be used for and by, one Authorized Customer Location. If the Authorized Customer Location has more than one DMS or LMS instance, then Customer may need a separate Subscription for each instance at EPIC’s sole discretion.
2.5 Modifications. EPIC reserves the right, from time to time, to make Modifications to any EPIC Product; provided, however, that EPIC will not materially diminish the functionality of an EPIC Product such that is rendered unusable by Customer during the Subscription Term. Unless there is a separate agreement between EPIC and Customer to the contrary, each such Modification may be made generally available to all EPIC customers that subscribe to the applicable EPIC Product.
2.6 Third-Party Materials.
(a) EPIC may integrate with, incorporate or otherwise offer access to certain Third-Party Materials within the EPIC Products. Third-Party Materials are offered and made available by the applicable Third-Party Licensor through EPIC, and not directly by EPIC, and, as such, may be used, edited, reproduced and distributed by such Third-Party Licensors outside the scope of these Master Subscription Terms and without EPIC’s knowledge. Any use of any Third-Party Materials by Customer or any Authorized User is subject not only to the terms and conditions applicable to the EPIC Product, but also any applicable Third-Party Terms and Conditions. Customer will notify EPIC promptly if Customer’s relationship with any Third-Party Licensor to which EPIC provides integration on behalf of Customer terminates. EPIC is not responsible or liable to Customer or any other party for any Third-Party Materials or any use thereof by Customer or any Authorized User. Neither Party may modify or terminate any of its respective obligations under these Master Subscription Terms, any Additional Product Terms or any Attachments in a manner that would impact the rights of any such Third-Party Licensor adversely.
(b) If EPIC integrates with any Third-Party Materials, Customer expressly authorizes and grants permission to EPIC and its Affiliates to: (a) substitute one form of integration for another, or (b) immediately discontinue providing any integration or any part thereof if EPIC, in its sole discretion, determines that it no longer has the right or ability to provide such integration for any reason. In either case, Customer’s Subscription to the applicable EPIC Product will continue in full force and effect and EPIC may adjust Customer’s Fees as reasonably appropriate.
2.7 Customer Resources. To the extent integration with Customer Resources is applicable to an EPIC Product, (a) Customer grants EPIC, its Affiliates and its service providers permission to access such Customer Resources for the purpose of providing such integration; and (b) Customer consents to the installation of hardware, software and/or other custom programs on Customer’s local area network and/or computer workstations, and the enablement and use of passwords to access the Customer Resources by EPIC and/or its Affiliates.
2.8 Mobile Applications.
(a) Certain EPIC Products may, from time to time, be made available through a Mobile Application, which may allow Customer, its Authorized Users and its Consumers to use and access the applicable EPIC Product (or certain features or functionality thereof) via a mobile or tablet device. To use any Mobile Application, the applicable Authorized User or Consumer must have a mobile or tablet device that is compatible with such Mobile Application. For clarity, such access and use of EPIC Products (or any portions thereof) by Customer through a Mobile Application will be subject to these Master Subscription Terms and any applicable Additional Product Terms and Attachments.
(b) Customer acknowledges that EPIC may from time to time issue upgraded versions of any Mobile Application, and in certain cases, EPIC may automatically and remotely upgrade the version of such Mobile Application that Customer, its Authorized Users and its Consumers are using on their respective mobile devices. Customer consents (on behalf of itself and its Authorized Users) to any such automatic and remote upgrading on the mobile devices of Customer, its Authorized Users and its Consumers.
3. CANCELLATION
3.1 Subscription Cancellation.
(a) Customer may at its option cancel any Subscription by providing Email Notice to EPIC at least sixty (60) days from the end of the then-current Subscription Term, provided that, cancellation is provided by the Management Contact listed in the applicable Order Form (or other duly appointed contact authorized in writing by Customer) and will be effective only at the end of a Subscription Term (e.g. for month-to-month Subscriptions, if notice is given on the fifteenth (15th) day of a given month, the cancellation will not occur until the end of the following month). EPIC may at its option cancel any Subscription at any time by providing Email Notice to Customer of the cancellation.
(b) The Order Form will remain in effect with respect to any other continuing Subscriptions (unless they are dependent on the canceled Subscription, in which case the dependent Subscriptions will also be canceled). If there are no Subscriptions remaining under the applicable Order Form following a cancellation, then such Order Form will automatically cancel upon the effective date of cancellation. If a Subscription to an EPIC Product is canceled, but one or more other Subscriptions to EPIC Products remain in effect under such Order Form, then EPIC may adjust the Fees for the Subscriptions to the remaining EPIC Products to be consistent with the Fees that would have been charged had Customer subscribed to only the remaining EPIC Products.
(c) EPIC may immediately cancel the Order Form with respect to any EPIC Product (or any component thereof) if it ceases to offer such EPIC Product (or such component of EPIC Product) to customers generally for any reason. In such event, the Order Form will continue to apply with respect to the remaining EPIC Products, if any.
3.2 Cancellation for Cause. Customer may immediately cancel the applicable Order Form (and the corresponding Subscriptions): (a) if the EPIC commits a material breach of such Order Form (including these Master Subscription Terms, any Additional Product Terms or any Attachments), and such material breach has not been cured within thirty (30) days after receiving Legal Notice of such (“Cure Period”); or (b) upon the initiation of any bankruptcy, insolvency or other similar proceeding against EPIC or an entity that Controls EPIC. For the avoidance of doubt, Customer is not entitled to waive or dismiss the agreed Cure Period, and any attempted waiver or dismissal of such Cure Period by Customer shall immediately cause Customer to be in material breach. Upon any cancellation of the applicable Order Form, all Subscriptions thereunder will be automatically canceled.
3.3 Effect of Cancellation. Upon any cancellation of a Subscription (including through a cancellation of the applicable Order Form):
(a) The Subscription Term will end, and all rights granted to Customer hereunder, and all obligations of EPIC related to such Subscription, will immediately and automatically cancel;
(b) Any unpaid Fees will be immediately due and payable; and
(c) Within five (5) days following the date of cancellation, Customer may request via Email Notice that EPIC provide Customer with access to Customer Data. Upon receipt of such request, and if applicable to the EPIC Product, EPIC shall provide to Customer access its Customer Data in a manner and format EPIC deems fit, to include view-only access to the applicable EPIC Product, CSV, spreadsheet, or other related format. EPIC shall have up to thirty 30 days following the date of receipt of such request to provide Customer Data to Customer. Notwithstanding the foregoing, EPIC shall have no responsibility to provide Customer access to Customer Data if all Fees have not been paid EPIC as of the date of Customer’s request.
3.4 Subscription Suspension. EPIC may at any time suspend Customer’s access to and use of an EPIC Product if EPIC reasonably believes that such access or use presents a threat or harm to the EPIC Product, EPIC, its Affiliates, its other customers, any Third-Party, or any Consumer. EPIC will provide notice to Customer of such suspension, including the reason for the suspension. EPIC may, in its sole discretion, lift such suspension after being reasonably assured by Customer that the threat or harm is no longer present.
4. USE RESTRICTIONS. Customer and Authorized Users will use and access EPIC Products solely for the purpose of managing and operating Customer’s business at the Authorized Customer Locations in the ordinary course. Customer (and Customer Representatives) may not:
(a) Use or access any EPIC Product or Third-Party Materials in a manner unreasonable for its intended use and/or not expressly authorized under the applicable Order Form, or any applicable provision contained in this Master Subscription Terms or any applicable Additional Product Terms or Attachment;
(b) Offer, sell, rent, lend, lease, license, pledge, transfer, distribute, provide access to or otherwise make available to any unauthorized Third-Party any EPIC Product or Third-Party Materials or any information relating thereto;
(c) Reproduce, copy, modify, translate, reverse engineer, decompile or disassemble any EPIC Product, or develop or create any derivative works of or relating to any EPIC Product or Third-Party Materials, or any underlying technology or intellectual property comprising any EPIC Product or Third-Party Materials;
(d) Violate any Law or any intellectual property rights or other rights of any Third-Party or any EPIC Affiliate in connection with any use of or access to any EPIC Product or Third-Party Materials;
(e) Attempt to gain unauthorized access to or disrupt the integrity or performance of any EPIC Product or the data contained therein;
(f) Frame or utilize framing techniques to enclose any EPIC Product (or portion thereof) without the prior written consent of EPIC;
(g) Upload, store or maintain any Malicious Code, or infringing or unlawful material, on or within an EPIC Product or any Third-Party Materials;
(h) Access or use any EPIC Product for any purpose that is competitive with EPIC or its products or services, or for purposes of developing or promoting any competing product or service;
(i) Permit access to or use of an EPIC Product by a direct competitor of EPIC;
(j) Use an EPIC Product for purposes of product evaluation, benchmarking or other comparative analysis without EPIC’s prior written consent;
(k) Publish, transfer, license, distribute or export any data from any EPIC Product (other than by using the content export function, if any, provided as part of the applicable EPIC Product), provided that in no event may Customer use such exported data other than in the ordinary course of its business (which must not include offering, licensing, selling publishing or otherwise distributing data to Third-Parties independently of Customer’s business);
(l) Scrape or data-mine an EPIC Product or any other website, URL or API of EPIC or its Affiliates (including through the use of any robot, spider or other automated device);
(m) Store, maintain or transmit Consumer Information through an EPIC Product that is not intended to be used to process or receive Consumer Information;
(n) Use an EPIC Product to harvest, collect or assemble Consumer Information regarding any of Consumers without such Consumer’s informed consent;
(o) Disclose any Credentials relating directly to any EPIC Product or any Third-Party Interfaces integrated therewith;
(p) Remove from or alter any EPIC Marks on an EPIC Product; or
(q) Make any representations or warranties regarding the functionality or performance of an EPIC Product.
5. CUSTOMER ACKNOWLEDGEMENTS.
(a) Customer may only cancel a Lien Payment Transaction or Consumer Payment Transaction (collectively, “Payment Transactions”) prior to the cutoff time, as established by EPIC and communicated to Customer from time to time, in which case EPIC will not deduct the funds.
(b) If an initial Payment Transaction is not sufficient to release the applicable lien, Customer may be able to make an additional Payment Transactions, each incurring additional Fees at the same rate as the initial Payment Transaction.
(c) Customer and the applicable Third-Party, and not EPIC, are responsible for working together to resolve any Lien Payment Transactions that are “unwound” for any reason after the completion of the Lien Payment Transaction via the EPIC Product.
(d) Customer shall provide sufficient and accurate information when initiating an Express Title. In the event an Express Title is rejected, EPIC may charge Customer a rejection fee in an amount provided in the applicable Order Form. Customer and the applicable Third-Party, and not EPIC, are responsible for working together to resolve any Express Titles disputes, for any reason, that occur after Customer’s request of the Express Title via the EPIC Product. Notwithstanding anything contained herein to the contrary, under no circumstances will EPIC be held liable for Customer misrepresentation of information when initiating an Express Title, whether such misrepresentation is intentional or otherwise.
(e) Under no circumstances will EPIC be held liable, whether by refund or damages of any kind, for use, result or otherwise of any EPIC Product.
(k) EPIC may from time to time in its discretion engage third parties as part of the EPIC Product or to perform the Services.
(f) Customer authorizes EPIC to contact Consumer in the performance of the EPIC Product and to advertise services and products to Consumer during such performance.
(g) EPIC may suspend or cancel Customer’s Subscription to the EPIC Product at any time as a result of the occurrence of Payment Transactions being returned due to insufficient funds, closed account, or any activity that EPIC deems, in its reasonable discretion, to be detrimental to the operation of EPIC, its Affiliates, its Third-Parties, its customers or any Consumer. Additionally, EPIC may charge Customer a fee for any such activity, as may be provided for within the Order Form.
(h) Customer agrees to open a Payment Account through the EPIC Product via its designated financial institution partners, and Customer agrees to accept the Payment Terms of Service and Privacy Policy respective to the Payment Account upon doing so. Any funds held in or transferred through the Payment Account are held in Customer’s name and transferred at Customer’s discretion. Customer must be at least eighteen (18) years old to create the Payment Account.
(i) Upon acceptance by Customer of Payment Terms of Service and Privacy Policy respective to the Payment Account, Customer thereby authorizes EPIC to collect and share its business and related personal information, including full name, date of birth, social security number, physical address, email address, financial information, and other information as necessary, with designated financial institution partners and related service providers in order to establish the Payment Account. Customer shall be responsible for the accuracy and completeness of such information. Customer understands that it will access and manage its Payment Account through the EPIC Product, with account notifications provided by the EPIC Product.
(j) Customer is hereby obligated to certify beneficial owner information at the time the Payment Account is opened and is responsible for notifying EPIC of any changes to the certified beneficial ownership information that was initially provided to EPIC. Such notice should be made as soon as practical upon a change to beneficial ownership information, in a form and manner acceptable to EPIC.
(k) Customer hereby acknowledges that a request to stop a payment that has been initiated by Customer, whether to or from their Payment Account, is not guaranteed to successfully stop the payment. Further, Customer understands that a stop payment request may result in a temporary suspension on Customer’s Payment Account until the request can be reviewed and a suspension lift approved, which may require additional information and cooperation from Customer. Additionally, Customer acknowledges that EPIC will proceed to charge any and all Fees for the respective EPIC Product associated with the stop payment request, as provided in the applicable Order Form. EPIC’s acceptance of a stop payment request does not constitute a representation by EPIC that the payment has not already been made, settled or that EPIC has had a reasonable opportunity to act on the request. Customer understands that if it requests a stop payment and EPIC, or its third parties or financial institution partners, incur any damages or expenses because of the stop payment, Customer agrees to indemnify such party for those damages or expenses, including attorneys’ fees. Customer assigns to EPIC all rights against the payee or any other holder of the payment. Customer agrees to cooperate with EPIC in any legal actions that EPIC may take against such persons. Customer hereby acknowledges that anyone holding the payment may be entitled to enforce payment against Customer despite the stop-payment request.
(l) Customer hereby acknowledges that this Agreement is subject to Article 4A of the Uniform Commercial Code – Funds Transfers, as adopted by the state in which the Payment Account is opened. Customer understands it may be a party to an Automated Clearing House (“ACH”) entry when using the EPIC Products, and Customer hereby agrees that EPIC may facilitate, via its financial institution partners, an entry through the ACH, and Customer hereby agrees to be bound by the National Automated Clearing House Association (“NACHA”) Operating Rules and Guidelines, the rules of any local ACH, and the rules of any other systems through which the entry is made. Customer should refer to Schedule A for additional terms that may apply.
(m) Unless otherwise agreed upon by the Parties in writing, during the term of the Order Form, EPIC shall be the sole provider of Lien Payment Transactions for Customer on vehicle liens where Customer has requested a Quoted Amount for loan payoff by EPIC, including, without limitation, the authorization, conveyance and settlement of all payment related transactions required to be made by Customer to such vehicle lienholders.
6. FEES AND PAYMENTS.
6.1 Fees
(a) In exchange for the rights granted to Customer herein, Customer will pay to EPIC the Fees in the manner provided in the applicable Order Form. Unless otherwise specified in such Order Form, all Fees are: (i) non-refundable; and (ii) payable in United States Dollars.
(b) Certain EPIC Products may require or permit payment via ACH or credit card. For such EPIC Products, Customer acknowledges and agrees that the Fees will be deducted from Customer’s bank account via ACH draft, or in some cases via Customer’s credit card, in accordance with the terms in the applicable Order Form. Customer hereby authorizes EPIC (and/or its designated Third-Party) to make such deductions.
6.2 Late Fees and Disputes. EPIC may charge interest on any payment not made when due at a rate equal to the greater of one- and one-half percent (1.5%) per month, or the maximum rate allowed under applicable Law. Customer will also be liable for all collection agency fees and reasonable attorneys’ fees payable by EPIC or its Affiliates in connection with enforcing Customer’s payment obligations. In the event of any dispute with respect to an invoice, Customer must notify EPIC in writing of, and provide a good faith basis for, such dispute within thirty (30) days of the date such amounts are due.
6.3 Taxes. EPIC shall charge Customer Taxes that it is legally obligated or allowed to charge on Fees, with such Taxes being due and payable at the time of applicable Fees. Customer may provide EPIC an exemption certificate acceptable to the relevant taxing authority, in which case, EPIC shall not collect Taxes covered by such certificate.
6.4 Adjustments
(a) EPIC reserves the right to increase Fees for an EPIC Product at any time, by providing Email Notice or In-Application Notice to Customer at least thirty (30) days in advance.
(b) Customer is responsible for paying any data integration surcharges associated with the applicable Third-Party Materials in order for Customer to utilize any integration. EPIC reserves the right to implement integration surcharge adjustments in connection with Customer’s use of Third-Party technology, software or services integrated with an EPIC Product, including Customer-utilized systems and Third-Party Materials as may be applicable. If EPIC expects to implement any such data integration surcharge adjustments, EPIC will endeavor to provide Customer with Email Notice reasonably in advance. Further, and without limiting EPIC’s rights and remedies, if Customer fails to pay timely the Subscription Fees and data integration surcharges for an EPIC Product, EPIC may suspend the integration for such EPIC Product and charge Customer an additional one-time Fee (at EPIC’s then standard rate) in order to reactivate the integration. In addition, if, at any time, Customer requests EPIC to provide integration for new systems or Third-Party Materials, EPIC may charge Customer additional one-time Fees and monthly integration surcharges.
7. PROPRIETARY RIGHTS AND LICENSES.
7.1 EPIC Products. Except for the rights expressly granted to Customer herein or in any Additional Product Terms or Attachment, Customer will not have any right, title or interest in or to any EPIC Product, Third-Party Materials or any other technology, materials or intellectual property of EPIC, its Affiliates or Third-Party Licensors, and nothing herein will effect a transfer of any intellectual property rights or any other ownership rights away from EPIC, its Affiliates or Third-Party Licensors. EPIC and its Affiliates, Third-Party Licensors and partners, as the case may be, reserve and retain all of their intellectual property rights and ownership rights, including to Third-Party Materials.
7.2 Customer Data.
(a) Customer owns all rights, title and interest in the Customer Data. Customer grants EPIC, its Affiliates, and their respective service providers hereunder the right to access, store, process and use Customer Data in connection with Customer’s use of an EPIC Product and otherwise for the benefit of Customer. As applicable to an EPIC Product, Customer may request that EPIC transmit Customer Data to a Third-Party, and, upon such request, EPIC will hereby be permitted to do so.
(b) Customer also grants EPIC, its Affiliates and service providers the right to use, and disclose in an aggregated manner (i.e. with data from other of EPIC’s customers), during and after the Subscription Term, Customer Data, for EPIC and Affiliates’ business purposes (including operating, maintaining and improving EPIC Products); provided that disclosures will not be made in a manner that identifies, or could be used to identify, Customer or otherwise associates Customer with such data.
7.3 Analytics Data. Customer acknowledges and agrees that, as between the Parties, EPIC (along with its Affiliates) owns and has the right to freely use and disclose Analytics Data for its business purposes, provided that Analytics Data may not be disclosed in a manner that identifies, or could be used to identify, Customer, or otherwise associates Customer with such data.
7.4 Customer Feedback. Customer also acknowledges and agrees that any Feedback from Customer (including any Customer Representatives) is submitted without any restrictions or expectations of confidentiality. As such, Customer (on behalf of itself and its Customer Representatives) hereby permits EPIC to use, to allow others to use, or to assign the right to use, without compensation, restriction or further obligation of any kind, any Feedback for any purpose whatsoever, including publication or the creation of any intellectual property or derivative works of or relating to any Feedback.
7.5 Marks
(a) Customer acknowledges that no rights or licenses are being granted to Customer or any Authorized User with respect to any EPIC Marks, and Customer will obtain the written consent of EPIC prior to any use or display of any EPIC Mark by Customer or any Authorized User. EPIC (and its Affiliates) will retain all intellectual property rights and all ownership rights in and to the EPIC Marks.
(b) EPIC acknowledges that no rights or licenses are being granted to EPIC or any Affiliates of EPIC with respect to any Customer Marks, except that EPIC may use Customer Marks in connection with the provision of EPIC Products, related services to Customer and display or use Customer Marks in EPIC materials and websites for marketing and related purposes. EPIC otherwise will obtain the written consent of Customer prior to any use or display of any Customer Mark by EPIC or any EPIC Affiliate. Customer will retain all intellectual property rights and all ownership rights in and to the Customer Marks.
8. CONFIDENTIAL INFORMATION
8.1 Confidentiality Obligations. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the services set forth in the applicable Order Form, and (except as otherwise authorized by the Disclosing Party in writing) disclose Confidential Information of the Disclosing Party only to its Personnel who need to know such information for purposes of fulfilling such Party’s obligations or exercising such Party’s rights relating to the services set forth in the applicable Order Form. The Receiving Party will keep the Confidential Information of the Disclosing Party confidential and secure, and protect it from unauthorized use or disclosure, by using at least the same degree of care as the Receiving Party employs to protect its own Confidential Information, but in no event less than reasonable care.
8.2 Compelled Disclosure. If the Receiving Party becomes legally compelled to disclose any Confidential Information of the Disclosing Party in a manner not otherwise permitted by these Master Subscription Terms, the Receiving Party will inform the Disclosing Party of the request with a prompt Legal Notice so that the Disclosing Party may seek a protective order or other appropriate remedy. If a protective order or similar order is not obtained by the date by which the Receiving Party must comply with the request, the Receiving Party may furnish that portion of the Confidential Information that it reasonably determines it is legally required to furnish. The Receiving Party will exercise reasonable efforts to obtain assurances that confidential treatment will be afforded to the Confidential Information so disclosed. This section will survive any termination of these Master Subscription Terms.
8.3 Injunctive Relief. Each Receiving Party acknowledges and agrees that the wrongful disclosure of any Confidential Information of the Disclosing Party may cause irreparable injury to such Party and its applicable Affiliates, and that remedies other than injunctive relief may be insufficient. Accordingly, the Disclosing Party will have the right to seek equitable and other injunctive relief to prevent any wrongful disclosure of any of its Confidential Information, as well as such damages and other relief to which such Party or its Affiliates may be entitled.
8.4 No Implied Rights. Each Party’s Confidential Information will remain the property of that Party. Nothing contained in this section will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party any implied rights or license to the Confidential Information of the other Party
8.5 Consumer Information. Access to, use of, and protection of Consumer Information by EPIC or any EPIC Affiliate is governed by this Master Subscription Terms.
8.6 NOTICE TO NORTH CAROLINA CUSTOMERS. FOR ALL PRODUCTS THAT REASONABLY PERTAIN TO CONSUMER INFORMATION: THE ORDER FORM, THESE MASTER SUBSCRIPTION TERMS, ANY ADDITIONAL PRODUCT TERMS AND APPLICABLE ATTACHMENTS RELATE TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER-RELATED DATA.
9. REPRESENTATIONS AND WARRANTIES.
9.1 By EPIC. EPIC represents and warrants to Customer that:
(a) EPIC will comply at all times with all applicable Privacy Laws in connection with its making available any EPIC Product;
(b) EPIC is the owner and/or the licensee of all intellectual property rights in and to all EPIC Products, and has all necessary rights and licenses to fulfill its obligations and grant all rights granted to Customer herein;
(c) EPIC has all necessary rights and licenses to make the Third-Party Materials available to Customer, subject to the terms and conditions herein;
(d) EPIC will use commercially reasonable efforts to avoid introducing any Malicious Code into the EPIC Products; and
(e) EPIC will preserve and safeguard Customer Data as described herein.
9.3 By Customer. Customer represents and warrants to EPIC that:
(a) Customer will comply at all times with all applicable Laws in connection with the use of and access to an EPIC Product and related Consumer Information, including all applicable Privacy Laws and Laws relating to unfair competition, deceptive trade practices, advertising, and Consumer protection, to include, without limitation, 18 U.S.C. §2721 (Federal Driver’s Privacy Protection Act), 23 U.S.C. §401 (National Driver Register Act), 5 U.S.C. §552a (Privacy Act of 1974), 18 U.S.C. §I 001 (Computer Fraud and Abuse Act of 1986), 15 U.S.C. §1681 (Fair Credit Reporting Act), 15 U.S.C. §§ 6801-6809 (Gramm-Leach-Bliley Act) and any applicable state provisions and statutes that may apply (and upon the request of EPIC, Customer will provide EPIC with evidence of such compliance);
(b) Customer is aware of the processes and rules required to maintain NIST 800-63A Digital Identity Guidelines section IAL2 (Level 2) Identity Assurance compliance for e-signatures and Customer has implemented solution(s) that adhere to requirements outlined to be compliant with NIST 800-63A Digital Identity Guidelines section IAL2 (Level 2) Identity Assurance and Customer will furnish documentation to demonstrate compliance with NIST 800-63A Digital Identity Guidelines upon request by EPIC.
(c) Customer’s entering into the applicable Order Form does not conflict with or violate any other agreement Customer may have with any Third-Party;
(d) Customer will make commercially reasonable efforts to ensure that any and all Customer Data provided hereunder will be kept true, accurate and complete, in all material respects, throughout the Term, and will inform EPIC of any inaccuracies promptly after Customer discovers them;
(e) With respect to Customer Data and Customer Resources, Customer has and will maintain all rights and licenses necessary to provide and make available to EPIC and its Affiliates for purposes of the applicable Order Form, and use in connection with an EPIC Product, and for EPIC and its Affiliates for purposes of this Agreement, including to access, store and use Customer Data and Customer Resources in accordance with the terms herein; such use will not infringe or violate any rights of any Third-Party;
(f) For any integrations between an EPIC Product and Customer-utilized systems, including a DMS or LMS, Customer has all rights and licenses necessary to grant EPIC and its Affiliates access to such systems and the applicable data stored thereon, and any access, polling, copying, extraction and downloading of, modifying and exporting such data by EPIC and its Affiliates in accordance with the applicable Order Form does not and will not infringe or violate any rights of any Third-Party;
(g) Customer will use commercially reasonable efforts to prevent Malicious Code from being introduced into the EPIC Products through Customer’s and its Authorized Users’ use;
(h) Customer presently maintains, and will continue to maintain and test periodically, appropriate information security measures and data protection safeguards consistent with industry standards and all applicable Privacy Laws, to ensure reasonable security and confidentiality of Credentials for any EPIC Product or Third-Party Interfaces, including (i) to protect the security, confidentiality and integrity of such Credentials, (ii) to protect against anticipated threats or hazards to the security, confidentiality and integrity of such Credentials, and (iii) to protect against any unauthorized access to or use of such Credentials; and
(i) Customer presently maintains, and will continue to maintain, (1) Professional Liability or Errors and Omissions insurance coverage at limits consistent with industry standards and (2) compliance with all licensure and surety bond requirements in its applicable state(s) of operation. The existence of Customer’s insurance policies, or EPIC’s approval thereof, does not relieve or limit any of Customer’s obligations. Upon written request by EPIC, Customer will provide certificates of insurance coverage to EPIC. If Customer fails to perform any of its obligations in this section, EPIC may temporarily or permanently suspend access of Customer Account(s) to EPIC Products until such time as Customer meets such obligations
10. INDEMNIFICATION.
10.1 By EPIC. EPIC will indemnify and defend Customer against any damages, losses, costs and expenses (including reasonable attorneys’ fees, court costs, settlement costs and awarded amounts) incurred in connection with any Third-Party claim to the extent such claim arises from an allegation that the use of an EPIC Product in accordance with the applicable Order Form (including these Master Subscription Terms and any Additional Product Terms or Attachments) infringes or misappropriates such Third-Party’s intellectual property rights.
10.2 By Customer. Customer will indemnify and defend EPIC and its Affiliates against any damages, losses, costs and expenses (including reasonable attorneys’ fees, court costs, settlement costs and awarded amounts) incurred in connection with any Third-Party claim to the extent that such claim arises from (a) any use of or access to any EPIC Product or Third-Party Material by or on behalf of Customer (subject to EPIC’s indemnification obligations herein), (b) any use of or access to any Customer Data or Consumer Information by EPIC and its Affiliates in accordance with the applicable Order Form (including these Master Subscription Terms and any Attachments), (c) any breach by Customer or any Customer Representative of any representations or warranties, (d) EPIC’s provision of an integration or otherwise transmitting any data to a Third-Party as authorized by Customer, including with respect to data security and use of data, (e) any claim by a consumer or vehicle owner, whether such consumer is a direct customer of Customer or otherwise, (f) any claim by a state or governmental agency, or (f) any claim with respect to suspected fraud, willful misconduct or gross negligence of Customer.
11. LIMITATIONS OF LIABILITY AND DISCLAIMERS.
11.1 LIABILITY LIMITATIONS. EPIC (INCLUDING ITS AFFILIATES, PARTNERS, CONTRACTORS, SERVICE PROVIDERS, REPRESENTATIVES,ADVISORS, AND ITS THIRD-PARTIES, INCLUDING ALL THIRD-PARTY LICENSORS) WILL NOTBE LIABLE TO CUSTOMER (INCLUDING ITS AFFILIATES, PARTNERS, CONTRACTORS, SERVICE PROVIDERS, REPRESENTATIVES, ADVISORS, AND ITS THIRD-PARTIES) FOR ANY INDIRECT,SPECIAL, EXEMPLARY, INCIDENTAL, MULTIPLE, CONSEQUENTIAL OR PUNITIVE DAMAGES(INCLUDING ANY DAMAGES RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THE MASTER SUBSCRIPTION TERMS AND THE USE BY CUSTOMER OF ANY EPIC PRODUCT, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, IN NO EVENT WILL EPIC’S AGGREGATE LIABILITY ARISING OUTOF, IN CONNECTION WITH, OR OTHERWISE RELATED TO THESE MASTER SUBSCRIPTION TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING MATERIAL BREACH OF CONTRACT,TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED: (i)ONE-THOUSAND USD ($1,000); OR (ii) THE TOTAL AMOUNTS PAID OR PAYABLE UNDER THESE MASTER SUBSCRIPTION TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS. FOR CLARITY,ALL LIABILITY LIMITATIONS SET FORTH HEREIN APPLY ON A PER CLAIM BASIS, WHETHER ARISING FROM A SINGLE OCCURRENCE, MULTIPLE OCCURRENCES, RELATED EVENTS, OR UNRELATED EVENTS, AND NO CLAIMS, ACTIONS, THEORIES OF LIABILITY, OR PROCEEDINGS MAY BE AGGREGATED, COMBINED, OR OTHERWISE TREATED AS A SINGLE CLAIM FOR PURPOSES OF APPLYING ANY LIABILITY CAP OR LIMITATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF ANY DATA BREACH, SECURITY INCIDENT, SYSTEM COMPROMISE, UNAUTHORIZED ACCESS, OR DATA EXPOSURE IS CAUSED BY OR CONTRIBUTED TO BY CUSTOMER, ITS SYSTEMS, ITS AUTHORIZED USERS, ITS END-USERS, CUSTOMER REPRESENTATIVES, OR OTHERWISE, THEN CUSTOMER’S LIABILITY FOR SUCH EVENT SHALL BE UNCAPPED AN DEPIC’S LIABILITY LIMITATIONS SHALL NOT APPLY, AND CUSTOMER SHALL BE FULLY RESPONSIBLE FOR ALL RESULTING COSTS,DAMAGES, FINES, PENALTIES, REGULATORY ASSESSMENTS, RESPONSE COSTS, FORENSIC EXPENSES, REMEDIATION COSTS, NOTIFICATION COSTS, AND ANY OTHER LOSSES ARISING OUT OF OR RELATING TO SUCH EVENT. FOR AVOIDANCE OF DOUBT, THE UNCAPPED LIABILITY APPLICABLE TO CUSTOMER FOR ANY DATA BREACH, SECURITY INCIDENT, SYSTEM COMPROMISE, UNAUTHORIZED ACCESS, OR DATA EXPOSURE IS IN ADDITION TO, AND NOT A LIMITATION OF, CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. ANY CLAIM, DEMAND, ACTION, OR PROCEEDING BROUGHT BY CUSTOMER ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN THREE (3) MONTHS AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CLAIM IS PERMANENTLY BARRED. CUSTOMER ACKNOWLEDGES THAT THE PARTIES ARE SOPHISTICATED COMMERCIAL ENTITIES AND AGREE THAT THIS SHORTENED LIMITATIONS PERIOD IS REASONABLE AND FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11.2 DISCLAIMERS. CUSTOMER IS SOLELY RESPONSIBLE FOR THE ACCURACY AND CONTENT OF ANY CUSTOMER DATA. THE EPIC PRODUCTS ARE INTENDED ONLY TO FACILITATE THE OPERATION OF CERTAIN ASPECTS OF CUSTOMER’S BUSINESS AT THE AUTHORIZED CUSTOMER LOCATION(S). EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED HEREIN, EPIC’S SERVICES AND PRODUCTS ARE PROVIDED “AS IS” AND NEITHER EPIC NOR ANY OF ITS AFFILIATES (NOR ANY THIRD-PARTY LICENSORS) MAKE ANY REPRESENTATION OR WARRANTY TO CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY EPIC PRODUCT (OR ANY THIRD-PARTY MATERIALS OR THIRD-PARTY INTERFACES), EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, USE, ACCURACY, NON-INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY TYPE OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EPIC MAKES NO REPRESENTATION, WARRANTY OR COMMITMENT: (A) THAT THE EPIC PRODUCTS WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION OR IN ACCORDANCE WITH ANY SPECIFICATIONS; (B) THAT THE EPIC PRODUCTS ARE SUITABLE FOR ANY SPECIFIC PURPOSE, INCLUDING ANY ADVICE REGARDING THE VALUE, COSTS, PROFIT, QUALITY OR SUITABILITY OF ANY PARTICULAR TRANSACTION, SALES STRATEGY OR OTHER BUSINESS PRACTICE; OR (C) AS TO THE ACCURACY OF ANY CONTENT OR DATA MADE AVAILABLE TO CUSTOMER THROUGH OR IN CONNECTION WITH THE EPIC PRODUCTS. IN NO WAY DOES ANY EPIC PRODUCT OR OTHER MATERIALS OR INFORMATION PROVIDED BY EPIC OR ITS AFFILIATES (INCLUDING, AS APPLICABLE AND WITHOUT LIMITATION, ANY FORM CONTRACTS, MENUS, DISCLAIMERS, PRIVACY POLICIES, OR TERMS AND CONDITIONS) CONSTITUTE LEGAL ADVICE. EPIC IS NOT ENGAGED IN THE PRACTICE OF LAW OR IN PROVIDING LEGAL OR COMPLIANCE SERVICES. ACCORDINGLY, CUSTOMER SHOULD CONSULT WITH ITS OWN LEGAL ADVISOR FOR LEGAL ADVICE RELATING TO ANY EPIC PRODUCT.
12. ARBITRATION AND CLASS WAIVER.
12.1 Arbitration. Customer agrees to arbitrate any dispute or claim that it may have with EPIC or its Affiliates that arises out of or relates in any way to the applicable Order Form or Customer’s use of or access to any EPIC Product. Such arbitration will be final and binding. If EPIC elects in its discretion to submit to arbitration any dispute or claim that it may have against Customer, any such arbitration will be governed by the provisions of this section.
12.2 Class Waiver. Any arbitration proceeding under this section will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted and Customer expressly waives its ability to participate in a class or representative proceeding against EPIC or its Affiliates. If the arbitration clause is found inapplicable to Customer’s dispute with EPIC, this class waiver will continue to apply in litigation. Customer agrees that this class waiver is an essential element of the agreement between Customer and EPIC and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this section will be null and void.
12.3 Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to this section must be submitted to binding arbitration before a single arbitrator administered by JAMS pursuant to JAMS Streamlined Rules. The arbitrator will be bound by and will strictly enforce these Master Subscription Terms and any other applicable Additional Product Terms, Attachments and/or Order Forms between Customer and EPIC, including any limitations of liability contained therein, and may not limit, expand or otherwise modify any of the provisions of the foregoing. Any arbitration will be held in Dallas County, Texas, unless otherwise agreed upon by the Parties in writing. Each Party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator will award the applicable Party any costs and fees to which it may be entitled under this Master Subscription Terms in connection with any indemnification claim. Customer agrees that its transactions with EPIC evidence transactions in interstate commerce, and that the Federal Arbitration Act therefore governs the interpretation and enforcement of this section (notwithstanding the application of Delaware Law to any underlying claims). Customer also agrees that this section survives any termination of these Mater Subscription Terms.
13. MISCELLANEOUS.
13.1 Notices. All Legal Notices required or permitted to be given by a Party must be (a) in writing and (b) either (1) sent by commercial delivery service or certified mail, return receipt requested, (2) Email Notice, with notice deemed to have been given upon receipt of the email (regardless of whether the email is opened), with such receipt confirmed by “delivery receipt” received by the sender, or (3) In-Application Notice, with such notice deemed to have been given upon receipt of the notice, with such receipt confirmed by a login session to EPIC Product by the receiver. All such notices are deemed to have been given on the sooner of the date set forth in the records of the delivery service or confirmation of receipt as described herein.
13.2 Order Form Effectiveness.
(a) Where the applicable Order Form is an online form or set of terms, such Order Form will be made effective by Customer’s acceptance of the terms through Customer’s “checkbox” submission or other similar electronic acceptance.
(b) Order Forms may be executed in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. The signatures of the Parties need not appear on the same counterpart. A Party may submit an executed counterpart via scanned PDF, which will be treated as an originally-signed document.
(c) Certain Order Forms may be executed by means of electronic or digital signatures. Any such electronic or digital signature will be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act (E-SIGN), and any similar Laws relating to the validity or enforceability of electronic or digital signatures.
13.3 Governing Law and Forum. This Agreement is governed by the laws of the State of Delaware, without regard to its conflicts of laws principles. Subject to the arbitration requirements of this Agreement, any litigation arising out of or relating to this Agreement shall be brought exclusively in (a) the Delaware Court of Chancery for any action seeking equitable or injunctive relief, or (b) the state or federal courts located in Delaware for all other actions. Customer irrevocably submits to the exclusive jurisdiction of such courts and waives any objection to venue or forum.
13.4 Order of Precedence. In the event of any conflict in contract terms, and unless otherwise specified expressly on the Order Form, the order of precedence will be, from highest to lowest priority: (a) the terms appearing in the applicable Order Form, (b) the terms of any Additional Product Terms, (c) the terms of any Attachment, and (d) these Master Subscription Terms. Contract terms will not be interpreted strictly against a Party by virtue of such Party’s role in preparing or drafting them.
13.5 Amendments and Modifications. Any amendments or modifications of these Master Subscription Terms, any Attachments, or the applicable Order Forms will only be effective if in writing and signed by each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth herein no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Master Subscription Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Notwithstanding the foregoing, Customer acknowledges and agrees that EPIC has the right, in EPIC’s sole discretion, to modify these Master Subscription Terms from time to time, to improve the integrity, quality, security, functionality or other aspects of the Services or Products. Customer will be notified of modifications through direct email communication or In-Application Notice from us if we reasonably believe that such changes may result in a material reduction in quality or functionality of the Services or Products. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Services or Products after the effective date of the modifications will be deemed acceptance of the modified Master Subscription Terms.
13.6 Force Majeure. Neither Party will be liable for any failure or delay in performing any obligation (except the requirement to pay Fees) to the extent such failure or delay is attributable to causes beyond its reasonable control. Such causes include natural catastrophes, strikes or labor difficulties, denial of service attacks, internet or Third-Party hardware or service failures, telecommunication failures, any act of God or other condition or event outside a Party’s reasonable control, to the extent not occasioned by the fault or negligence of the delayed Party.
13.7 Entire Agreement. The Order Form, including these Master Subscription Terms, any Additional Product Terms and any Attachments, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to such matters, whether oral or written. No terms stated in any other Customer purchase order, privacy agreement, vendor agreement or other Customer form agreement will be incorporated into or form any part of the applicable Order Form unless such document is signed by an officer of EPIC and explicitly references such Order Form and states that it is intended to modify such Order Form. Notwithstanding anything herein to the contrary, to the extent there is any conflict between this agreement and other agreements Customer currently has, has had in the past, or may have in the future with EPIC or its Affiliates regarding products or services outside the scope of the Order Form, those other agreements will continue to control with respect to such products and services.
13.8 Severability. The failure of either Party to enforce any provision of these Master Subscription Terms will not be deemed a waiver of such provision or of the right of such Party thereafter to enforce such provision. If any provision is deemed invalid or prohibited by Law, such provision will, if possible, be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable Law. In any event, the remainder of the provisions will remain in full force and effect.
13.9 Headings. The headings used in these Master Subscription Terms are used for convenience only and are not to be considered in construing or interpreting provisions herein.
13.10 Remedies. Except as otherwise expressly provided in the applicable Order Form (including these Master Subscription Terms, any Additional Product Terms and any Attachments), all remedies provided herein are cumulative and in addition to and not in lieu of any other remedies available to a Party in connection with such Order Form, or at law or in equity.
13.11 Survival. Sections 1 (Definitions), 3 (Cancellation), 4 (Use Restrictions), 5 (Customer Acknowledgments), 6 (Fees and Payments, but solely until all outstanding Fees not reasonably in dispute have been paid); 7 (Proprietary Rights and Licenses), 8 (Confidential Information), 9 (Representations and Warranties), 10 (Indemnification), 11 (Limitations of Liability and Disclaimers), 12 (Arbitration and Class Waiver), 13 (Miscellaneous), and any other provisions above that expressly state that they survive termination will survive the termination of this Agreement. In addition, any provisions above that should reasonably survive termination in accordance with their respective terms will also so survive, as will any outstanding payment or tax obligation hereunder, and any cause of action or claim of either Party, whether in Law or in equity.
13.12 Assignment. Customer may not assign the applicable Order Form or any rights or obligations under such Order Form, whether by operation of Law or otherwise, without the prior written consent of EPIC, which may be withheld in its sole discretion. EPIC may assign the applicable Order Form, together with all of Customer’s applicable subscription agreements, additional terms and conditions, amendments, addendums and the like, upon Email Notice to Customer.
