These CARFAX® Banking and Insurance Group Terms and Conditions, any application(s) for CARFAX services executed by the company identified on such application(s) ("Application(s)"), and any exhibits or addenda to any Application (whether entered into at the same time or at a later date) collectively form the agreement ("Agreement") between CARFAX, Inc. ("CARFAX") and the company identified on the application which includes all of such company's affiliates identified as participating pursuant to this Agreement (collectively with Company, "Customer"). The CARFAX Reports and Police Reports offered pursuant to this Agreement are collectively called the "CARFAX Services".
1. Term and Termination. The Agreement is effective from the date on which CARFAX activates your account and shall remain in force for the initial or promotional period of time identified on the Application ("Initial Term"). Upon expiration of the Initial Term, the Agreement shall automatically renew for successive, additional one (1) year periods unless either party gives the other party written notice of its intention to terminate the Agreement at least thirty (30) days prior to the renewal date. The Initial Term and any such renewal periods shall together constitute the "Term." CARFAX may suspend or terminate the Agreement and Customer's access to the VHS (as defined below) at any time if Customer breaches any provision of the Agreement.
2. License; Ownership.
3. Customer Representations and Warranties. For each CARFAX Report or Police Report requested by Customer, Customer represents, warrants and affirms that (a) it will comply with all applicable federal, state, and local laws, rules, and regulations in connection with this Agreement, including without limitation, its use of and access to the CARFAX Databases and/or the CARFAX Services and any information (including without limitation personal information) contained therein and shall secure and maintain in full force and effect all licenses, permits, certificates and bonds required by applicable law for the lawful operation of its business; (b) it will not use the CARFAX Databases or the CARFAX Services or any information derived therefrom as a factor in evaluating any consumer's eligibility for credit, insurance or employment or for any other permissible purpose under the FCRA or in any way that renders CARFAX or the CARFAX Databases subject to the FCRA; and (c) it will not use the CARFAX Services or any information contained therein to solicit any individual, vehicle owner, or property owner or provide such information to any third party for purposes of such solicitation. Representations and Warranties Specific to Police Reports: For each Police Report requested by Customer, Customer further represents, warrants and affirms that Customer is a party or the owner of a vehicle involved in the accident, a legal representative of a party or the owner of a vehicle involved in the accident, a representative of the insurance company or insurance adjusting agency for a party or vehicle involved in the accident, or otherwise legally entitled to receive a copy of the Police Report (collectively, "Interested Party"). Customer acknowledges that CARFAX is relying on the truth of each of the foregoing representations and warranties made by Customer in this Section 3 in providing the Police Reports and Customer intends that CARFAX should so rely. Customer understands that it may be subject to criminal and civil penalties for violating any applicable laws and regulations in connection with its access to or use of the Police Reports Database, any Police Reports and/or any information derived therefrom. For Customers obtaining Police Reports from law enforcement agencies in Colorado, Florida, South Carolina, Customer further attests as follows, as applicable:
4. Access to CARFAX Services. Customer will be responsible for the administration of such username(s) and password(s) (including without limitation in connection with change in authorized personnel). Customer will ensure that (a) a separate username and password is issued for each authorized representative of Customer and (b) only authorized representatives of Customer are permitted to use its username(s) and password(s). Customer understands that it is liable for the security of the username(s) and password(s).
5. Restrictions on Access and Use of CARFAX Services.
6. Security. Customer acknowledges that Police Reports may include personally identifiable information (collectively, "PII"). Customer will keep all such PII confidential and secure, including without limitation by (a) restricting access to the Police Reports to those employees who have a need to know as part of their official duties; (b) ensuring that the Police Reports are accessed for a Police Reports Permissible Use only, and Police Report information is not shared with any third party except as permitted by law and pursuant to the Agreement; (c) maintaining and complying with a data retention policy governing the security and retention of Police Reports; and (d) maintaining an information security program that is designed to meet federal guidelines establishing standards for safeguarding PII, including, at a minimum, to (i) ensure the security and confidentiality of the Police Reports; (ii) protect against any anticipated threats or hazards to the security or integrity of data contained on Police Reports; and (iii) protect against unauthorized access to or use of the Police Reports or the data contained in Police Reports. In the event of any actual or reasonably suspected breach of Police Reports data, Customer will promptly notify CARFAX of such actual or suspected breach and will fully cooperate with CARFAX in investigating such breach or unauthorized access and preventing the recurrence of any unauthorized or attempted possession, use or knowledge of the data. Customer shall be solely responsible for any legal or regulatory obligations which may arise under applicable law in connection with such a breach of security and shall bear all costs associated with complying with all legal and regulatory obligations in connection therewith (including without limitation, any fines or penalties and/or any costs or expenses related to any third party claims) and will reimburse CARFAX for any expenses incurred by CARFAX in connection with a breach of security, or any actions required as a result thereof. For purposes of clarification, and without limiting the generality of the foregoing, Customer shall, in compliance with law and at its own expense, notify the individuals whose information is the subject of the breach or potential breach of security, and shall also notify any other parties (including without limitation regulatory entities and credit reporting agencies) as may be required by law. Customer agrees that such notification shall not reference CARFAX or any CARFAX website or CARFAX Databases, nor shall CARFAX be otherwise identified or referenced in connection with the breach of security, without express written consent. Customer shall remain solely liable for and pay all claims that may arise from a breach of security, including without limitation costs for litigation (including attorneys' fees), and reimbursement sought by individuals, including without limitation costs for credit monitoring or allegations of loss in connection with the breach of security, and to the extent that any claims are brought against CARFAX, Customer shall defend, indemnify and hold harmless CARFAX from such claims. Customer shall provide samples of all proposed materials to notify consumers and any third-parties, including regulatory entities, to CARFAX for review and approval prior to distribution.
7. Fees and Payments.
8. CARFAX Trademarks. CARFAX grants to Customer a limited, nonexclusive, nontransferable license to use the trademark "CARFAX" and other CARFAX trademarks and logos ("Marks") solely in connection with Customer's CARFAX Reports Permitted Use under the Agreement. Customer must comply with any trademark guidelines provided or made available to Customer by CARFAX. Customer acknowledges that Customer's use of the Marks shall inure to CARFAX's benefit.
9. Disclaimers; Limitation of Liability. Customer acknowledges that CARFAX collects data from public records and other sources for use in the VHS and that this data may contain errors and omissions. CARFAX does not guarantee the correctness or completeness of the CARFAX Databases and CARFAX will not be liable for any loss or injury caused, in whole or part, by its procuring, compiling, collecting, interpreting, or making available the CARFAX Databases. Customer understands that not all information is available for all states and that CARFAX does not have access to some information that may be available to other parties. Customer also understands there may be a period of time between receipt of certain information by CARFAX and its inclusion of such information into the CARFAX Databases. Customer acknowledges that the CARFAX Databases not provide any conclusions regarding the condition of any vehicle, and Customer assumes full responsibility with respect to its decisions and transactions using the CARAX Databases. Customer recognizes that CARFAX's sole obligation in the case of erroneous data, when notified in writing by Customer of such erroneous data, is correction of the record in question in the VHS. CARFAX MAKES AND CUSTOMER RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, AND CARFAX EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Customer agrees that CARFAX's liability for damages, regardless of the form of action, shall not exceed the amount paid by Customer for the individual CARFAX Service in question. This shall be Customer's exclusive remedy. IN NO EVENT WILL CARFAX BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS OR INCOME, OR ANY THIRD PARTY CLAIM OR DEMAND) EVEN IF CARFAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. No Assignment or Resale. ustomer may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations is void without CARFAX's express written consent.
11. Confidentiality. CARFAX may disclose to Customer certain confidential information, including, but not limited to, nonpublic business, technical, financial and marketing information. The manner in which CARFAX discloses information to Customer, whether tangible or intangible, and in whatever form or medium provided, shall not affect the characterization of such information as "confidential information." Information generated by Customer that contains, reflects or is derived from confidential information of CARFAX shall also constitute CARFAX's confidential Information. Customer shall (i) use the CARFAX's confidential information only for the purpose for which the information was disclosed, and no other purpose, (ii) restrict disclosure of such confidential information solely to those of Customer's personnel or third party service providers with a "need to know" in order to perform their responsibilities in connection with the purpose for which the information was disclosed and who are bound by confidentiality obligations to Customer at least as restrictive as those set forth herein and (iii) safeguard CARFAX's confidential information with the same degree of care as Customer uses to protect its own confidential information from unauthorized use or disclosure, but at all times not less than commercially reasonable care to avoid unauthorized use or disclosure. Customer shall notify CARFAX immediately upon discovery of any actual or suspected unauthorized use or disclosure of any portion of CARFAX's confidential information and, at CARFAX's request, will fully cooperate with CARFAX in its efforts to prevent or remedy such unauthorized use or disclosure. CARFAX's confidential information, including all originals, copies, reproductions and summaries thereof, shall be deemed the property of CARFAX. Within ten (10) business days after a written request by CARFAX, Customer shall return to CARFAX all physical and electronic copies of such originals, copies, reproductions and summaries of such confidential information and certify such return or destruction. Customer agrees that an impending or existing violation of this Section may cause CARFAX irreparable injury for which it may not have adequate remedy at law and that CARFAX may be entitled to seek immediate injunctive relief (without the posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of Customer's confidentiality obligation and/or to compel specific performance of Customer's confidentiality obligation, in addition to any other rights and remedies available to CARFAX. Customer will not oppose the application for any such relief, and in any action by CARFAX to enforce the terms of this Section, whether in law or in equity, Customer agrees to reimburse CARFAX for all costs and expenses, including reasonable attorneys' fees, incurred.
12. Force Majeure. Without limiting any other provision in this Agreement, CARFAX will not have any liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of CARFAX affecting production or delivery hereunder in any manner.
14. Consent to Receive Future Offers. Customer expressly consents to receive marketing and advertising offers and other information via facsimile transmissions, telephone calls and/or texts, email, and direct mail from CARFAX or its affiliates. Such offers and information may be directed to the postal and email addresses, telephone number(s) and facsimile number(s) listed on any Application or to any other contact addresses and numbers used by Customer. Customer affirms that Customer is the only subscriber for all of the telephone numbers provided. Customer also confirms that any business landline telephone number provided is not associated with a residence and is not assigned to any wireless telephone service. Customer agrees to notify CARFAX if any of the telephone numbers provided change.
15. CARFAX Database Integrity. Customer will not upload or otherwise introduce any viruses, spyware, or other software that jeopardizes the security or integrity of the CARFAX Databases or any CARFAX website and/or mobile device application, or that otherwise interferes with the CARFAX Databases, applicable CARFAX website, and/or mobile device application functioning as intended by CARFAX.
16. Dispute Resolution; Governing Law; Jurisdiction and Venue.
17. English Language Only. The parties confirm that it is their wish that the Agreement and any other documents delivered or given pursuant to the Agreement, including notices, have been and shall be in the English language only. Les parties aux présents confirment leur volonté que cette convention de même tous les documents, y compris tout avis, s'y rattachant, soient rédigés en anglais seulement.
18. Entire Agreement; Modification. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and terminates and supersedes all previous agreements, whether oral or written, relating to the same subject matter. CARFAX reserves the right to discontinue or modify any aspect of any services offered by CARFAX and/or modify these CARFAX® For Claims Terms and Conditions and to impose new or additions terms or conditions at any time, by posting them on the website: https://www.carfaxbig.com/about/vhs-terms and https://www.carfaxforclaims.com/about/vhs-terms. Such modifications and additional terms and conditions will be effective immediately and incorporated into the Agreement. Your continued use of the CARFAX Services will be deemed acceptance thereof. Except with respect to any terms regarding the fees, in the event of a direct conflict between the terms and conditions contained in an Application and those set forth in these CARFAX® Banking and Insurance Group Terms and Conditions, the Application shall govern. CARFAX"s failure to insist in any one or more instances upon the performance of any term, obligation, or condition of this Agreement by Customer, or to exercise any right or privilege conferred in this Agreement, will not be construed as a waiver of such term, obligation, or condition or a relinquishment of such right or privilege. Any waiver of a breach of any term or condition of this Agreement by CARFAX will not be considered a waiver of any subsequent breach of the same or any other condition. The last sentence of Section 2(a) and last two sentences of Section 2(b), Sections 3, 6, 7 (with respect to any unpaid fees), 9, 11, 13, 14, 16, and 18 will survive the expiration or termination of this Agreement.
19. Pay-Per-VIN Subscription to VHS. On a monthly basis, Customer will pay at least the monthly minimum amount identified on the Application (as may be revised from time-to-time). On a monthly basis, CARFAX will calculate the dollar value of Customer's usage for the month based on total usage in the month and the price per vehicle history report corresponding to Customer's monthly minimum fee, as set forth in the Application. In the event that the amount calculated based on total usage of CARFAX Reports by Customer for a particular month is greater than the monthly minimum fee, then Customer will pay the amount due for total usage for such month. If the amount calculated based on total usage for a particular month is equal to or less than the monthly minimum fee, then Customer will pay the monthly minimum fee. If the parties have entered into an addendum for Customer to access the VHS through alternative report delivery options, Customer may do so, but Customer understands and agrees that CARFAX may charge additional fees for such access option. No credits will be given in the event that Customer's usage of CARFAX products and services identified on the Application is less than the monthly minimum for that month, either as a refund or to use in any subsequent month or for any other CARFAX products or services.
20. CARFAX Everywhere Program. A bank, automobile finance company, or credit union Customer may subscribe to the CARFAX Everywhere Program for purposes of Customer's automobile lending and/or automobile collections activities. To subscribe, Customer shall be required to provide a reasonably accurate estimate of Customer's automobile loan volume. Under the program, CARFAX will allow Customer to run all the CARFAX Reports as are reasonably necessary for purposes of Customer's automobile lending and/or automobile collections activities, for one flat monthly rate. If at any time during the term Customer runs CARFAX Reports in excess of the average number that is commercially reasonable for Customer's stated automobile loan volume based on industry standards, CARFAX reserves the right to increase Customer's monthly subscription rate or change Customer's subscription to the appropriate pay-per-VIN Program. CARFAX reserves the right to require that Customer substantiate its automobile loan volume by providing appropriate documentation. Customer may run CARFAX Reports for Customer's automobile lending and/or automobile collections purposes only. Customer will also promote www.myCarfax.com to its own customers via Customer's website and other means of communication as mutually agreed by the parties.