Product Terms of Use | Auto Genius

Acceptance of Terms
1. Touchless Holdings, L.P., a Delaware limited liability company d/b/a Auto Genius (f/k/a Auto Genius Ventures Inc.) (“Company” or “we”), provides its Service (as defined below) to you, subject to this Terms of Service agreement (“TOS” or “Agreement”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business, or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
2. The Company may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on https://autogenius.io. You can review the most current version of the TOS at any time at https://autogenius.io/terms. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to [email protected].
3. As part of the registration process, you may identify the domains for the licensed Software, up to the maximum number permitted in the applicable order form (“Order Form”).
Description of Service

The “Service” includes (a) the Company’s SaaS-based website acceleration services and related technologies and (b) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS.

General Conditions/Access and Use of the Service
1. Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Company. You shall not i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service; (ii) modify or make derivative works based upon the Service or otherwise violate Company’s intellectual property rights in the Services; (iii) reverse engineer the Service; (iv) access the Service for any benchmarking or competitive purposes; (v) build a competitive product or service; (vi) build a product using similar ideas, features, functions or graphics of the Service; (vii) copy any ideas, features, functions or graphics of the Service; (viii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the Service or through the use of the Service; (ix) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the Service; (x) interfere with or disrupt the integrity or performance of the Service or the data contained in it, including engaging in denial of service attacks; (xi) attempt to gain unauthorized access to the Service or its systems or networks; (xiii) use the Service in violation of applicable law; (xiv) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components; or (xv) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Company provides you or publishes in connection with the Service, and you shall promptly notify Company if you learn of a security breach related to the Service.
2. Any software that may be made available by Company in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Company hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the Software on a single domain or the list of domains stated on the Order Form solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software or any Service. You agree not to access the Software or Service by any means other than through the interface that is provided by Company for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Company or any third party is granted to you in connection with the Software or Service.
3. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “Posting”) in connection with or relating to the Service (“Your Content”). You agree to cooperate with and provide reasonable assistance to Company in promoting and advertising the Services.
4. You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Company reserves the right to access your account in order to respond to your requests for technical support. By Posting Your Content on or through the Service, you hereby do and shall grant Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. Company has the right, but not the obligation, to monitor the Service, Content, or Your Content.
5. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; and (c) transmission to Company’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Company will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
6. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Company’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account, or the Equipment with or without your knowledge or consent. COMPANY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY EQUIPMENT OR THIRD PARTY APPLICATION (WHETHER RELATED TO SUPPORT, AVAILABILITY, SECURITY, PRIVACY OR OTHERWISE) AND FOR THE ACTS OR OMISSIONS OF ANY EQUIPMENT OR THIRD PARTY PROVIDERS. COMPANY DOES NOT WARRANT ANY SUCH EQUIPMENT, REGARDLESS OF WHETHER SUCH EQUIPMENT IS PROVIDED BY A THIRD PARTY THAT IS HAS A RELATIONSHIP WITH COMPANY OR OTHERWISE RECOMMENDED BY COMPANY.
7. The failure of Company to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Company, even though it is electronic and may not be physically signed by you and Company, and it governs your use of the Service.
8. Company reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Company’s website and in other communication with existing or potential Company customers. To decline Company this right you need to email [email protected] stating that you do not wish to be used as a reference.
9. Subject to the terms hereof, Company may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
10. Company may use data accessed through the use of the Services in connection with the delivery of the Services, and may use such data in an aggregated and de-identifiable basis (meaning the data is combined with other data (i) without identifying you; (ii) without disclosing the identify of any customer, third party supplier, or you; (iii) without disclosing you as the source of the data; and (iv) and without disclosing any personally identifiable information of any person) in Company’s business and operations, which may include (1) analyzing and reporting such aggregated and de-identified data in connection with the conduct of Company’s business and operations, (2) creation of operational statistics for internal use only; (3) creation and inclusion in financial reporting of aggregate statistics regarding services performed; (4) creation and inclusion in marketing materials of aggregate statistics highlighting the capabilities of Company’s products and services; and (5) advancing and improving existing products and services, and (6) creating new and enhanced product and services, and development and publication of market and industry intelligence and expertise by Company.
Payment
1. Payment: Payment is to be made via ACH, wire, or credit card (via Stripe, Quickbooks, or other third party payment processor) within (15) fifteen days of the date of invoice. Invoices are issued upon execution of the Order Form and monthly thereafter.
2. Invoices. Company will invoice you in accordance with the payment schedule set forth in the relevant Order Form or, if an Order Form does not specify a payment schedule, Company will invoice you on a monthly basis commencing on execution of the Order Form. All payments will be due in accordance with Section 4.1. The provision of the Services to you is subject to your payment of invoiced amounts when due. Company reserves the right to suspend the Services if its invoice(s) remain unpaid after the payment is due, and, at its option, to terminate the relevant Order Form. All monetary amounts will be due in United States currency unless otherwise specified in the Order Form.
3. Invoice Disputes. In the event that you dispute any invoice from Company, you shall pay the undisputed portion and provide written notice within 30 days of the date of the invoice setting forth the nature and extent of the invoice dispute. The parties shall negotiate in good faith for up to ten (10) days to resolve such disputed invoice. In the event that any undisputed amounts payable to Company are in excess of fifteen (15) days past due, Company shall be entitled to charge you interest thereon at the rate of one percent (1.0%) per month, or the highest interest rate allowed under the law, whichever is less, until the time of complete payment. The foregoing terms are in addition to any other remedies that Company may have for your failure to make timely payments to Company, including, without limitation, at Company’s option, the right to suspend any and all Services until payment is made or terminate the Order Form and this Agreement. Such suspension of Services shall not take place unless Company has provided you with at least fifteen (15) days’ prior written notice.
4. Taxes. Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction based on amounts paid or payable under the Agreement (collectively, “Taxes”). Customer shall be responsible for all Taxes and similar charges based on or arising from the Services, Order Form, this Agreement or its performance, other than taxes based on Company’s net income. If Company has the legal obligation to pay or collect Taxes for which you are responsible under this Section, Company will invoice you, and you will pay that amount unless you provide Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
Representations and Warranties

You represent and warrant to Company that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Company to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Company’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.

Term & Termination

‍Unless otherwise set forth in an Order Form, you have the right to terminate an Order Form by providing at least sixty (60) days prior written notice to Company by sending a termination request to [email protected], provided that such cancellation shall not be effective until the end of the then-current Order Form Term. Subject to earlier termination as provided below, Company may terminate, in whole or in part, any Order Form and this TOS at any time by providing thirty (30) days prior notice to you, which may be delivered to the email address on the Order Form or your last known email address. In addition to any other remedies we may have, Company may also terminate this TOS immediately upon notice (or ten (10) days in the case of nonpayment), if you breach any of the terms or conditions of any Order Form or this TOS. Company reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by Company upon any termination of the Order Form or your account in Company’s sole discretion. If Company terminates any Order Form or any of the Services without cause and you have signed up for a fee-bearing Service, You will pay any unpaid fees covering the remainder of the then-current Order Form term, and Company will refund the pro-rated, unearned portion of any amount that you have prepaid to Company for Service after the effective date of termination. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS. In no event will any termination relieve you of the obligation to pay any fees payable to Company for the period prior to the effective date of termination.

DISCLAIMER OF WARRANTIES

‍The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond our reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, THE SERVICES, INCLUDING THE SOFTWARE, SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM THE PROBLEMS DESCRIBED HEREIN, INCLUDING BUT NOT LIMITED TO LOSS OF DATA.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.****

Indemnification

‍You shall defend, indemnify, and hold harmless Company from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Company shall provide notice to you of any such claim, suit or demand. Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Company’s defense of such matter.

U.S. Government Matters

You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Company on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.

Assignment

You may not assign this TOS without the prior written consent of Company, but Company may assign or transfer any Order Form and this TOS, in whole or in part, without restriction.

Governing Law, Arbitration, and Class Waiver

12.1 Governing Law.

This Agreement shall be construed in accordance with the substantive laws of the State of Michigan without reference to its conflicts of law principles. The parties expressly disclaim any application to this Agreement of the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods. Any action to enforce any arbitration proceeding, and any other legal action, suit or proceeding that is not otherwise subject to mandatory arbitration pursuant to Section 12.2 and arises under or relates this Agreement or the use of the Services shall be heard exclusively in the either the state courts located in the County of Oakland, Michigan, U.S.A. or the Federal court located in the Eastern District of Michigan, U.S.A., and the parties hereby submit to the jurisdiction thereof and venue therein. Notwithstanding the foregoing, a party may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any appropriate jurisdiction.

12.2 Arbitration and Class Waiver.

Arbitration. You agree to arbitrate any dispute or claim that it may have with Company or its affiliates that arises out of or relates in any way to this Agreement or the use of or access to any Services. Such arbitration will be final and binding. If Company elects in its discretion to submit to arbitration any dispute or claim that it may have against you, any such arbitration will be governed by the provisions of this Section 12.2.

Class Waiver. Any arbitration proceeding under this Section 12.2 will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted and you expressly waive your ability to participate in a class or representative proceeding against Company or its affiliates. If the arbitration clause is found inapplicable to your dispute with Company, this class waiver will continue to apply in litigation. You agree that this class waiver is an essential element of the agreement between you and Company 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 12.2 will be null and void.

Arbitrator Authority. Any dispute or claim subject to arbitration pursuant to this Section 12.2 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 this Agreement and any other applicable Purchase Terms between you and Company, 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 Birmingham, Michigan, 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 Section 9 in connection with any indemnification claim.

Miscellaneous

Both parties agree that this TOS, together with any Order Form, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices must be addressed to Auto Genius, 651 North Broad Street, Ste 205, Middletown, DE 19709, attention: Legal Department with a mandatory copy to [email protected].

Force Majeure

Notwithstanding anything to the contrary herein, except with respect to a Party’s payment obligations hereunder, neither Party shall be in breach of this Agreement or incur any liability to the other in connection with any failure to perform any of its obligations hereunder to the extent that performance of such obligations is prevented or materially hindered by reason of strikes, lockouts, restrictive governmental or judicial orders or decrees, riots, insurrection, war, acts of God or any other reason or event reasonably beyond such Party’s control.