IN ORDER TO USE THE TALONes SOFTWARE, DEALER MUST FIRST AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY CLICKING "AGREE" ON THE TALONes PORTAL. DEALER MAY NOT USE THE TALONes SOFTWARE IF DEALER DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. DEALER UNDERSTANDS AND AGREES THAT DEALER’S USE of TALONes CONSTITUTES DEALER’S ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.

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TERMS AND CONDITIONS OF USE
AND END USER LICENSE AGREEMENT

 These Terms and Conditions of Use and End User License Agreement are included in and part of the Sales Agreement and Software License executed between TALON Powersports Solutions, Inc. (“TALON”) and any dealer that subscribes to the TALONes system(“Customer”).  The Sales Quote between TALON and Customer  (“Sales Quote” or “Quote”) and these Terms and Conditions of Use and End User License Agreement collectively comprise the Sales Agreement and Software License, and are collectively referred to as the “Agreement” or “Sales Agreement.”  

Section 1: Fees

1.1       In consideration of the performance by TALON of its obligations under the Agreement, Customer will pay the amounts described in this Agreement (“Fees”) in accordance with the terms set forth herein.  Except as expressly set forth herein, all Fees are non-refundable.

1.2       Except as otherwise provided in this Agreement, Fees will be invoiced monthly in advance and in any circumstance, paid by Customer within thirty (30) days of such receipt.  Further payments terms shall be as stated on the TALON invoice to Customer and may include a late payment charge up to the maximum allowable by law.

1.3      TALON may suspend any and all services provided to Customer hereunder or Customer’s use of the Software upon notice to Customer for non-payment of Fees under this Agreement or for any breach of this Agreement or any other agreement between TALON and Customer or Customer and any Third Party Licensors that relates to this Agreement. TALON will promptly reinstate services and the provision of Software upon payment of all outstanding fees in full.

1.4       All Fees are exclusive of applicable sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties associated with the  sale or use of the equipment, Software or services, including any federal, state or local sales, use or excise taxes (“Taxes”).  (Income taxes based upon the income of TALON under this Agreement are not Taxes for purposes of this section.)  In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify, and hold TALON harmless from any Taxes applicable to the performance of this Agreement.

Section 2: Equipment

2.1             “TALON Equipment” or “Equipment” means all of the servers, peripherals, and other hardware listed in the Quote.  

2.2             “Third Party Equipment” means all of the desktops, monitors, and other hardware purchased by Customer directly from any third-party vendor and listed in the Quote.

Section 3: Software

3.1             “DMS” means all Software, TALON Equipment, and Third-Party Equipment purchased or licensed by Customer under this Agreement.

3.2             “TALON Software” means all TALON developed software listed in the Quote and licensed to Customer thereunder.  

3.3             “Third Party Software” means all of the third-party software sold to Customer by TALON or otherwise obtained, if listed in the Quote, and where applicable upgrades to such software.

“Software” means the TALON Software and Third-Party Software.

Section 4: Installation

5.1             TALON cannot provide an estimated installation date for some Software and Services without TALON first completing an analysis of Customer Data. Customer agrees to complete all TALON requested pre-work by the date both parties have agreed upon.  In addition, Customer agrees that reasonably requested Customer required tasks will be completed during the allotted time frame. Failure to complete such required tasks may result in installation delays. Customer also agrees to complete any tasks necessary to prepare its system for conversion as requested by TALON. Remote training sessions on various aspects of the DMS will be offered to Customer personnel in advance of go-live at TALON’s discretion. Customer agrees to have key personnel attend any required sessions on a mutually agreed upon schedule. Failure to complete these training sessions may cause an increase in Fees.

Section 6: Support Services, Price Book Services, and “Other” Support Services

6.1             During the term of this Agreement, TALON, in exchange for the monthly System Support Service Fee, also called “Monthly Support” and “Support Fee,” will provide or have provided to Customer the software support services and price book support services described in the relevant invoice (collectively, “Support Services”).

6.2             TALON shall not be obligated to provide Support Services for any of the reasons set forth below in this Section 6.2.  TALON may, however, in its sole discretion, elect to perform these services or have them performed upon Customer’s request as Other Support Services (as defined below) and charge Customer for them as set forth herein.

(a)       Services that are commercially unreasonable to perform due to lack of access to Customer’s system, data, or personnel, including lack of access caused by the Customer’s failure to maintain appropriate backup materials or data. 

(b)        Services necessitated because customer has not installed all Software updates provided by TALON.

(c)        Services necessitated by Customer’s failure to use, secure, or safeguard the Software in accordance with best industry practices, or Customer’s use of the Software in a manner inconsistent with the Documentation, this Agreement, as recommended by TALON, or other reasonable procedures and practices designed to mitigate such external threats, including hacking or computer viruses.

(d)       Services necessitated by any modification, change, or revision of the Software performed by anyone other than an authorized TALON representative.

(e)        Service with respect to any software or equipment other than TALON Software and Equipment.

6.3             At Customer’s request, and as necessary to accomplish initial installation of the DMS, TALON may, but is not obligated to, perform or have performed additional support services related to the Software other than those defined as Support Services (“Other Support Services”).

6.4             Other Support Services shall be charged at TALON’s then-current rates at the time the services are performed, which rates are subject to change.  If there is no current rate for the service in question, Customer will be charged a fee to be mutually agreed upon by the parties.  In the absence of a fee agreement within ten (10) days of agreement to perform the Other Support Services, Customer will be charged a fee at a rate set by TALON in its sole discretion as reasonable. 

Section 7: Software License 

7.1       Subject to the terms of this Agreement, TALON grants to Customer a non-exclusive, non-transferable, revocable license for the term of this Agreement to use (through its employees, agents, or subcontractors) the number of copies identified in the Quote of the TALON Software in object code form, together with an equal number of updates or corrections thereto that TALON may make from time to time and Customer may license by separate payment(s) or TALON may otherwise provide in its sole discretion, and any user manuals and on-line help information for the TALON Software, as TALON may update them from time to time and Customer may license by separate payment(s) or TALON may provide (“Documentation”). Customer agrees to only use the TALON Software with TALON Equipment and approved Third Party Equipment, and only for the purpose of managing a powersports dealership.  A violation of this Section 7.1 will give TALON the right to terminate this Agreement immediately without the need for any further act.  In addition to the foregoing, Customer may make two (2) copies of the TALON Software for back-up purposes. 

7.2       As Consideration for the license granted under Section 7.1, Customer will pay to TALON an upfront fee and a monthly or other periodic royalty in such amounts as may be set forth in this Sales Agreement, or as may be required from TALON from time to time.

7.3       Except for upgrades that are licensed by Customer from TALON by separate payment(s) as set forth in Section 7.1 or that are otherwise provided by TALON at its sole discretion to its customers generally, Customer has no license to upgrades of the TALON Software.  To the extent Customer licenses upgrades to TALON Software from TALON by separate payment(s), or Customer is provided the upgrades to Software from TALON (without charge) as set forth herein, the upgrades shall be considered part of the “TALON Software” and are subject to these terms and conditions.

7.4       Customer will obtain the licenses to Third Party Software and any upgrades and documentation therefor in accordance with the license agreement provided by the applicable third party vendor for such software (the “Third Party Software Terms”) and with any applicable fees charged by the third party software provider. Customer agrees to defend, indemnify, and hold TALON harmless from any breach of the Third-Party Software Terms or failure to pay or remit the amounts owed to the third party vendors for the applicable Third Party Software. Customer acknowledges and agrees that the applicable third party vendor is responsible for the performance and functionality of the Third Party Software, and TALON will not be liable for any damage or cost associated with any non-performance, error, failure, or other harm caused by the Third Party Software.

7.5       Except as expressly authorized by this Agreement, Customer will not itself, nor through any parent, subsidiary, affiliate, employee, contractor, agent, or third party:

(a)        Copy, modify, or create derivative works based upon the Software or Documentation;

(b)        Decompile, disassemble, or reverse engineer the Software in whole or in part; 

(c)        Defeat, disable, or circumvent any protection mechanism related to the Software, including without limitation any code which necessitates or solicits agreement to an end user license before use of the Software; 

(d)        Sell, license, sublicense, lease, rent, or distribute to any third party, or disclose, permit access to, or transfer to any third party, any portion of the Software or the Documentation, or, in particular, without limitation, use the Software to provide dealer management services to other parties;

(e)        Publish the results of Software performance benchmarks to any third party without the prior written consent of TALON; or 

(f)        Export the Software in violation of any U.S. Department of Commerce export administration regulations or other laws or regulations.

Section 8: Ownership; Unauthorized Use

8.1             Except for the license rights expressly granted in this Agreement, this Agreement does not transfer to Customer or any other party any right, title, or interest in or to the DMS, the Documentation, or any copyright, patent, trademark, trade secret, or other intellectual property or proprietary right in or related to the DMS (including any items that could be deemed derivative works or materials) or the Documentation.  Customer acknowledges that TALON retains sole and exclusive title to all portions of the TALON Software (including any items that could be deemed derivative works or materials), Documentation and any copies thereof, and hereby assigns to TALON all right, title, and interest in and to any modifications made to the TALON Software by or on behalf of Customer, whether or not such modifications are permitted under this Agreement.  This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code, and any custom or developed work product or modifications made under this Agreement will be the exclusive property of TALON, including all intellectual property rights therein.  Customer will preserve the DMS from any liens, encumbrances, and claims of any individual or entity.  Customer will not use any Confidential Information disclosed by TALON to Customer in connection with this Agreement to contest the validity of any intellectual property rights of TALON or its licensors.  Any such use of TALON’s Confidential Information will constitute a material, non-curable breach of this Agreement.

8.2             Upon learning of any unauthorized possession or use of or access to the DMS, Customer will notify TALON immediately, will promptly furnish details of such occurrence, will assist in preventing any recurrence, and will cooperate fully in any investigation, litigation or other proceedings undertaken to protect the rights of TALON. Customer agrees to follow in full all applicable laws and regulations relating to data privacy and security, including any breach notification and breach mitigation laws and regulations.

8.3             Customer acknowledges and agrees that the unauthorized disclosure or use of the DMS or Documentation, or violation of the proprietary rights of TALON in the DMS or Documentation, will cause immediate and irreparable harm to TALON for which money damages cannot adequately compensate TALON.  Accordingly, notwithstanding any other provision of this Agreement, Customer agrees that in the event of any unauthorized disclosure or use of the DMS or Documentation or threat of same, or any other violation or threatened violation of the proprietary rights of TALON in the DMS or Documentation, TALON shall be entitled to obtain immediate injunctive relief from any court or tribunal with authority to grant such relief, without the requirement of posting bond.

Section 9: Limited Warranties, Limitation of Liability; Indemnification

9.1             TALON warrants that for a period of ninety (90) days from delivery the unmodified TALON Software will perform substantially in accordance with the Documentation.

9.2             The sole obligation of TALON and the sole remedy of Customer for a non-conformance with the foregoing warranty is to repair or replace the TALON Software, or, at TALON’s sole option, to provide a refund for the TALON Software.

9.3             To receive the foregoing remedy set forth in Section 9.2, Customer will send to TALON, at Customer’s sole expense, any TALON Software allegedly in breach of this warranty with a reasonable description of the reason for non-compliance with the warranty.  If after investigation and diagnosis by TALON, TALON determines that a claimed breach of any warranty is not in fact a breach, Customer shall pay TALON the reasonable cost of its investigation and diagnosis, as well as the reasonable cost of any repair or replacement that TALON may have performed.

9.4             TALON shall have no liability of any kind for the warranty set forth in Section 9.1:

(a)              If Customer fails to notify TALON of such breach within the time period stated in Section 9.1;

(b)             If such alleged breach is not capable of being reasonably reproduced;

(c)              To the extent such alleged breach results from Customer’s actions or omissions, including but not limited to Customer’s failure to maintain appropriate backups;

(d)             To the extent such alleged breach is caused because Customer has not installed all Software upgrades offered or provided by TALON;

(e)              To the extent such alleged breach is caused by Customer’s failure to use, secure, or safeguard the Software in accordance with industry best practices or in a manner consistent with the Documentation, this Agreement,  as otherwise recommended by TALON, or as otherwise appropriate to reduce the risk of external threats such as hacking or computer viruses; or

(f)              To the extent such alleged breach is caused by any modification or revision of the Software performed by anyone other than an authorized TALON representative.

9.5             TALON warrants that the Support Services and Other Support Services will be performed in a workmanlike manner.

9.6             In the event any of the Support Services or Other Support Services are in breach of the warranty set forth in Section 9.5, the sole obligation of TALON and the sole remedy of Customer shall be for TALON to re-perform such services, or at the sole option of TALON, to provide a refund for such services.

9.7             TALON shall have no obligation of any kind for any claimed breach of the warranty set forth in Section 9.5 if Customer fails to notify TALON of such breach within thirty (30 days) following the date Customer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty.

9.8             In addition to the time limitations for notice above, any cause of action for breach of the foregoing warranties set forth in this Section 9 shall be brought within one (1) year from the date the alleged breach was discovered or by reasonable inspection should have been discovered, whichever occurs first.

9.9             The exclusive remedies of this agreement shall not be deemed to have failed of essential purpose so long as TALON is willing and able to repair or replace defective software and re-perform the Support Services or Other Support Services in the prescribed manner. 

9.10           EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, ALL SERVICES AND SOFTWARE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND.  THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  TALON DOES NOT WARRANT THAT THE SOFTWARE OR EQUIPMENT WILL BE ERROR-FREE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TALON OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF TALON’S OBLIGATIONS HEREUNDER.  THE SOFTWARE AND EQUIPMENT MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET.  CUSTOMER ACKNOWLEDGES AND AGREES THAT TALON AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEB‑SITES, COMPUTERS, OR NETWORKS.  TALON WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES.  CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.

9.11            NEITHER TALON NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES, EQUIPMENT, OR SOFTWARE PROVIDED HEREUNDER.  THE TOTAL LIABILITY OF TALON AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES, EQUIPMENT, OR SOFTWARE PROVIDED UNDER THIS AGREEMENT IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.  THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.

9.12          Customer shall defend, indemnify, and hold TALON harmless against all liability, costs, or expenses, which may be sustained by TALON on account of any loss, damage, or injury which result from Customer’s breach of this Agreement or applicable law.

Section 10: Termination

10.1          Customer may terminate this Agreement for any or no reason by providing TALON at least ninety (90) days prior written notice.

10.2          If Customer defaults in payment of any sum due hereunder or under any agreement with TALON or attempts assignment or “effective assignment” of this Agreement, TALON shall, without further notice, have the right immediately to terminate this Agreement.

10.3          Either party may terminate this Agreement at any time, upon written notice, in the event that the other party breaches any obligation under this Agreement, and fails, within thirty (30) days after receiving such written notice of such breach, to cure such breach.

10.4          If, in TALON's sole discretion, it becomes impossible or impracticable to provide Support Services or Other Support Services, TALON may, at its option, terminate this Agreement, or terminate certain Support Services or Other Support Services, in whole or in part, hereunder upon thirty (30) days’ written notice to Customer.  In such event, Customer shall be entitled to receive a credit or refund of any prepaid and unused Support Service Fees applicable to the Software or Price Books for which Support Services have been canceled from the effective date of cancellation to the end of the prepaid period.

10.5          Notwithstanding any other provision of this Agreement, TALON may and in addition to the suspension rights set forth in Section 1.3, in its sole discretion, suspend Customer’s access to the services or Software provided under this Agreement for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the services or Software; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect TALON from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. TALON will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension.  TALON will promptly restore access to the services or Software as soon as the event giving rise to suspension has been resolved.  This Section will not be construed as imposing any obligation or duty on TALON to monitor use of the services or the DMS.

10.6          Upon the expiration or termination of this Agreement for any reason: (1) Customer will immediately cease using the TALON Software and will return to TALON the originals and all copies of the TALON Software and Documentation; (2) Customer will immediate pay to TALON all unpaid amounts owed to TALON under this Agreement; and (3) the parties will return or destroy all Confidential Information in their possession or control.  Section 11.7 of these Terms and Conditions and the terms and conditions of this Agreement relating to confidentiality, indemnity, and limitations of liability shall survive termination or expiration of this Agreement.

10.7          TALON shall have the right of reasonable, peaceable access to the premises and equipment of the Customer to confirm cessation of use of the DMS and return of the DMS and Documentation when such cessation and return is required under this Agreement, including the right to remove the DMS and Documentation from the premises.  Customer shall co-operate with the exercise of such rights.

10.8          If, in TALON’s sole discretion, it becomes impossible or impracticable to provide Support Services or Other Support Services, TALON has the alternative right to decide against termination of this Agreement and require that Customer purchase, license and install such additional equipment and copies or upgrades or replacements of software or equipment as TALON shall deem appropriate to continued use of the Equipment and Software and provision of such services, and Customer agrees it shall purchase, license, and promptly install such copies, software, or equipment. In the absence of prompt purchase, license and installation, TALON has the further right to purchase, license, and install on Customer’s behalf and at Customer’s expense, with a right of reasonable, peaceable access for installation, and Customer shall co-operate with the exercise of such rights.

10.9          TALON also has such additional remedies as in other parts of this Agreement.

Section 11: Confidentiality; Data; Security

11.1 During the course of this Agreement, the parties agree that Customer may be exposed to certain non-public information or materials relating to the TALON’s products, services, intellectual property, business, business plans, marketing programs, and efforts, customer lists, customer information, financial information and other confidential information and trade secrets (“Confidential Information”).  For the avoidance of doubt, the DMS and Documentation are Confidential Information.

11.2 Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to Customer prior to being disclosed by or obtained from TALON as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Customer; (c) has been or is hereafter rightfully received by Customer from a third person (other than the TALON) without restriction or disclosure and without breach of a duty of confidentiality to the TALON; or (d) has been independently developed by Customer without access to Confidential Information.

11.3 Customer will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement.  Without limiting the foregoing, Customer will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as Customer employs with respect to its own confidential information of a like importance, and Customer may only disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder.  Customer has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information. Customer will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.

11.4 To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over Customer, Customer may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, Customer will so notify TALON in writing and, if possible, Customer will provide TALON notice not less than five (5) business days prior to the required disclosure. Customer will reasonably cooperate with TALON in limiting or preventing such disclosure to the extent permitted by applicable law.

11.5 On termination or expiration of this Agreement, Customer will return or destroy (except for purchased Equipment), at TALON’s option, the Confidential Information.

11.6 Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, and that upon any such breach or any threat thereof, TALON will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies TALON might have at law or equity.

11.7  Customer grants TALON a perpetual, world-wide, royalty-free, irrevocable, exclusive, and fully transferable license to access, view, copy, analyze, present, modify, share, transfer, sell, sublicense, and otherwise use Customer’s documents, information, graphics, data, content, and other materials that Customer inputs into the services and Software provided under this Agreement or otherwise collects, creates, or provides for use in the DMS (the “Customer Data”).  “Customer Data” includes information and data relating to Customer’s customers, prospects, employees, and other individuals.  Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to TALON for use as contemplated under this Agreement.  Customer agrees that TALON may share Customer Data with its affiliates (including but not limited to Harley-Davidson Inc., Harley-Davidson Motor Company, Inc., Harley-Davidson Financial Services, Inc., and Harley-Davidson Credit Corp.), representatives and agents, and other third parties for any purpose.

Except for the license granted in this Section and in Exhibit A (if applicable), nothing contained in this Agreement will be construed as granting TALON any right, title, or interest in the Customer Data, and Customer retains all ownership of the Customer Data. Customer understands and agrees that it is their responsibility to supply Customer Data in the formats and media requested by TALON. TALON may assist in any required Customer Data harvest at its sole discretion but is in no way responsible for the success of such activities. Customer agrees, if requested, to provide TALON representatives remote access capability to assist in the Customer Data harvest.

11.8 Consistent with any law or regulation applicable to TALON’s services and Software, Provider will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of the Customer Data.  Provider will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.

Section 12: Service History-Link

12.1 If Customer elects to use the Service History-Link feature of the TALONes system, Customer agrees to the terms and conditions set forth in Exhibit A (Service History-Link).

Section 13: Miscellaneous Terms

13.1 Authority.  Customer represents that it has the right to obtain a license to use the Software, to purchase the Equipment, and the right to use the Price Books, and that it has the authority to enter into this Agreement.

13.2 Waiver.  The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other default or breach.

13.3 Governing Law.  This Agreement will be governed and construed pursuant to the laws of the State of Ohio, without regard to its conflict of law provisions. 

13.4 Jurisdiction.  Each of the parties to this Agreement irrevocably submits to the jurisdiction of any state or federal court sitting in Cuyahoga County, Ohio, and further agrees that any action or proceeding arising out of or relating to this Agreement shall be heard and determined in such court, and agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court or to contest the jurisdiction or power or decision of such court over or pertaining to the party or with respect to the subject matter in any other court within or outside of the United States other than the appropriate appellate courts.  Each of the parties to this Agreement irrevocably waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought, and waives any bond, surety, or other security that might be required of the other party with respect thereto.

13.5 Amendment. TALON shall have the right, at any time and without notice, to add to or modify the terms of this Agreement by delivering such amended terms to Customer by email at the address provided to TALON by Customer. Customer’s access to or use of the Software after the date such amended terms are delivered to Customer shall be deemed to constitute acceptance of such amended terms.

13.6 No Partnership. TALON is an independent contractor of Customer and nothing in this Agreement is intended to, or will be deemed to, constitute an employment relationship, a partnership, or a joint venture between the parties.

13.7 Assignment.  Customer may not assign this Agreement in whole or in part through the operation of law or otherwise without the written consent of TALON, or in the case of a Customer in the form of a corporation or partnership, may not cause “effective assignment” by substantial change of the composition of the corporation or partnership by way of directors, officers, shareholders, or partners.

13.8 Force Majeure.  Neither party shall be liable for any delay in performance or failure to perform resulting from circumstances beyond its control, other than a failure to pay any Fees hereunder (a “Force Majeure Event”).

13.9 Severability.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force.

13.10 Inconsistency.  In the event of any inconsistency between the terms of the Quote and these Terms and Conditions, the terms of the Quote shall prevail, except that the terms of warranty and warranty disclaimers, limitation of liability, and indemnification in these Terms and Conditions shall prevail over the Quote.

13.11 Notices.  All notices required under this agreement shall be sent to TALON and the Customer at the addresses contained in the Quote, or by e-mail at known e-mail addresses, or to such other address as is hereafter furnished to the other party in writing.  Any notice delivered by certified mail shall be effective on the third day after it is deposited in the United States mail.  Any notice delivered by recognized commercial overnight courier shall be effective on the next business day after delivery to such courier, provided that a receipt documents such delivery and such receipt reflects that the notice was to be sent overnight.  Any notice delivered by facsimile transmission or e-mail shall be effective on the day of transmission.  Any notice delivered by messenger or personal delivery shall be effective when delivered to such address.

13.12 Agreement.  Customer acknowledges that it has read and received a copy of this Agreement, including these Terms and Conditions and the Quote, in its entirety, understands it and agrees to be bound by its terms, and that, except as provided in Section 13.5 this Agreement constitutes the final, complete, and exclusive statement of the agreement between the parties, which supersedes all prior and contemporaneous oral and written communications between the parties relating to the subject matter of this Agreement.  No provision appearing on any form originated by Customer shall be applicable unless such provision is expressly accepted in writing by TALON.  Except as provided in Section 13.5, this Agreement may not be modified or altered except by a written instrument duly executed by TALON and Customer.  Customer’s use of the Software shall constitute acceptance of this Agreement, and this Agreement shall become effective upon such use.

14. Business requirements. Customer agrees to the following business requirements to ensure business continuity.

14.1 Unsupported Platform. Dealer is solely responsible for insuring that the Software is compliant with Dealer’s computer operating system (e.g., Microsoft Windows) and database software and software systems (collectively “OS and Database Systems”), and that all OS and Database Systems that interact with the Software are subject to a current and valid license from the provider(s) of the OS and Database Systems, with reasonable support services remaining available from the provider(s) of the OS and Database Systems.  TALON may from time to time inform Dealer of licensing requirements and updates as required by common 3^rd party providers of OS and Database Systems. If the dealer is out of compliance with this provision by more than 180 days they will not receive TALONes software updates, may experience diminished support  due to the inability to provide TALONes software updates, and TALON reserves the right to charge additional fees to bring Dealer back into compliance.