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NEXT INSPECT APPLICATION TERMS OF USE

Effective Date:  January 29, 2020

These Terms of Use (“Terms”) contain the terms which govern your use of the Next Inspect website, mobile site, mobile application, and associated user tools (the “Tools”) (collectively, “Next Inspect”, the “Application”, or the “App”) owned and operated by Manheim Remarketing, Inc. and its affiliates (collectively, “Manheim”, “we”, “us”, or “our”).

By accessing or using the Application, you agree, for yourself, your dealership, your company, and your representatives (collectively, “you”, “your”, or “Dealer”), to abide by these Terms as well as the Manheim Privacy Policy and the Manheim Terms and Conditions, each as may be amended from time to time (collectively, the “Agreement”).

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE APPLICATION, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES YOU AND MANHEIM TO ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT, LIMITS CLASS ACTION CLAIMS, AND CONTAINS A JURY TRIAL WAIVER.

If you do not agree to these Terms, stop using the Application immediately.

A few important points:

  • You are only eligible to use the Application if you are a Primary or Authorized User (as defined below).
  • We may update these Terms from time to time, and such changes will become applicable to you if you continue to use the Application at any time after such changes are posted. You should always read through any changes, and if you don’t agree to them, stop using the Application.
  • Additional terms and conditions may apply to specific products or Tools or your use of certain portions of the Application. These additional terms, and any other terms linked from or incorporated in these Terms, are also legally binding.

TYPES OF USERS

  • Primary User. If you are the designated Primary User for an automotive dealership or original equipment manufacturer of vehicles (each a “Client”) for which you are an owner, principal, executive, officer or manager (each an “Authorized Representative”), you represent that you have full legal and business authority to enter into this agreement on behalf of the Client and to bind the Client to the conditions for using this Application. You agree that as between Manheim and the Client, the Client is solely responsible for the acts and omissions of its Authorized Users (as defined below).
  • Authorized User. If you are any user who has been authorized by the Client to use the Application (“Authorized User”), you acknowledge and agree that your access to and use of the Application is at the discretion of the Client.

ACCOUNT REGISTRATION

To access or use the Application, you will be required to create an account. In order to create an account, you will be required to provide a username, email address, and password (“Account Information”).

When you register for an account, you should provide only accurate and current information. You should also inform Manheim immediately of any unauthorized use of your account. You are responsible for safeguarding your Account Information and for anything that happens through your account – with or without your permission. Manheim is not responsible for any loss or activity that results from the unauthorized use of your account.

By registering for an account, you acknowledge and agree that Manheim may contact you using the information that you provide to us, including, but not limited to, by displaying notifications to you through the App.

1.     INTRODUCTION TO THE NEXT INSPECT APP

2.    LICENSE TO USE THE APP AND GENERAL USE RESTRICTIONS

3.    INFORMATION ABOUT APP USAGE

4.    TERM AND TERMINATION

5.    CHANGES TO SERVICES; SUSPENSION AND TERMINATION OF RIGHTS

6.     INTELLECTUAL PROPERTY

7.    SUPPORT AND MAINTENANCE

8.    EXPORT CONTROL LAWS

9.    U.S. GOVERNMENT END-USERS

10.   ADDITIONAL TERMS FOR USERS OF THE APPLE AND GOOGLE MOBILE PLATFORMS

11.   TAXES

12.   ENFORCEABILITY

13.   ASSIGNMENT

14.   HEADINGS

15.   WAIVER

16.   INCORPORATION OF MANHEIM TERMS AND CONDITIONS, ADDENDA AND OTHER AGREEMENTS

17.   ELECTRONIC APPROVAL

18.   SURVIVAL

19.   CONTACT US

1.            INTRODUCTION TO THE NEXT INSPECT APP. Through the Next Inspect App, we offer you tools to help you create a condition report for a vehicle by responding to questions about the condition and capturing images of the vehicle; such condition report may only be used for Manheim marketplaces subject to applicable limitations for condition reports.
 
Below is a brief description of the Tools and features available through the App, each of which may be subject to additional terms and conditions. You should review the terms and conditions applicable to every Tool or feature you access through the App. Section 16 below describes how these Terms relate to the terms and conditions applicable to these in-App Tools and features. Manheim may offer Tools and services through the App either directly or through an affiliate or unaffiliated third party. Additionally, where a Tool or feature relies on information from a third party, Manheim is not responsible for the accuracy or timeliness of that information. Some of the following options may not be available to all Users or in all jurisdictions. You can use the App to:
 
A.    VIN Scan. Scan the VIN to receive vehicle information from the VIN decode, namely, the year, make, model and trim of the vehicle.
 
B.   Disclosures:  Respond to the questionnaire in the “Questions and Announcements” section to provide information about the vehicle and condition to inform the condition report and condition grading.
 
C.   360 Images: 360 Images allows you to generate 360 degree images from static images of a vehicle for use in connection with the condition report within the Manheim marketplaces. The additional terms and conditions of the 360 Images are set out in the attached Addendum, which is part of and incorporated into these Terms.
 
D.   Condition Report: Based on the information provided through the Tools in A-C above, the Application will generate a condition report and condition grade for the vehicle.  Manheim makes no representations or warranties regarding or related to any condition reports generated from the use of the App.
2.            LICENSE TO USE THE APP AND GENERAL USE RESTRICTIONS. Subject to the terms and conditions of this Agreement, Manheim hereby grants to you a limited, nonexclusive, nontransferable, non-assignable, non-sub-licensable, revocable, license to use the Application for Dealer-related purposes on any User product (“Device”) that you own or control which uses an operating system utilized or provided by Apple, Google, Microsoft, or any other supported platform (the “Platform”) and as such Device is permitted to be used by the rules or terms of service governing use set forth by the Platform. Manheim, not the Platform, is solely responsible for the Application and any information or content received through the Application or the services accessible through the Application. For clarity, the license does not include any right to make or distribute copies of the Application, to use the Application for the benefit of any third party or to monetize the use of the Application. Without limiting the generality of the foregoing, any access to the Application or the services or Tools accessible through the Application by automated inquiry devices, robots, or repetitive data gathering and extraction tools, routines, scripts, or other mechanisms with similar functionality, is expressly prohibited. You agree not to associate, input, or upload to or through the Application any virus, Trojan horse, worm, time bomb, or other computer programming routine that (i) is intended to damage, interfere with, intercept, or expropriate any Manheim system or technology or (ii) infringe the intellectual property rights of another.
 
3.           INFORMATION ABOUT APP USAGE. Whenever you interact with the Application, we may use a variety of technologies that automatically, manually, or passively collect information about how you use and access the Application (“Usage Information”). Usage Information may include, among other things:
 
• Your browser type, device identifier, and operating system;
• Sites you visited before and after visiting the Application;
• Information about your location;
• Pages you view and links you click within the Application; and
• Other information about your interactions with the Application.
 
Usage Information does not identify you by name. All rights and interest in the Usage Information will be owned by Manheim without any restrictions. Manheim may use the Usage Information for any legal purpose, including, but not limited to, with third parties such as partners, customer, vendors, and service providers, and as aggregated data, analysis, and reports. Note that the Manheim Privacy Policy also describes ways in which we may collect and use your information, and this section is not intended to limit that description, or our rights, in any way.

4.           TERM AND TERMINATION. This Agreement becomes binding on you when you download, access, or use the Application and/or when you click “accept” (or otherwise indicate your consent to these Terms). This Agreement will remain in full force and effect thereafter until terminated as provided herein (the “Term”). You may terminate this Agreement for convenience at any time by deleting the Application from all Devices that you own or control. Manheim may terminate this Agreement, or suspend or limit your access to the Application, at any time and for any reason, with or without notice to you. Notwithstanding the foregoing, with respect to any user, this Agreement shall terminate automatically upon a breach by such user of the “INTELLECTUAL PROPERTY” paragraph of this Agreement. Upon the termination of this Agreement for any reason whatsoever, all licenses granted hereunder shall immediately terminate, and the affected user shall immediately cease and desist from all access to and use of the Application and shall immediately purge from such user’s mobile devices all copies of the Application.

5.           CHANGES TO SERVICES; SUSPENSION AND TERMINATION OF RIGHTS. Manheim may, at any time and for any reason, change, update, modify, suspend, or terminate any service or Tool that may be accessed through the Application for any reason, without notice to you. Additionally, you acknowledge and agree that your right or ability to access and use the Application may be withdrawn or limited by the Client at any time.

6.           INTELLECTUAL PROPERTY
 
A.    You acknowledge and agree that the Application contains proprietary and confidential information that is owned or licensed by Manheim and is protected by applicable copyright, trademark, and other intellectual property laws, including without limitation, the software programming and html and other code contained in the Application and other content and Tools available through the Application. The trademarks, service marks, and logos used and displayed on this Application are registered and unregistered trademarks of Manheim and others. Nothing in this Application should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the Application, without the written permission of the trademark owner. Manheim and its licensors reserve the right to enforce its and their intellectual property rights to the fullest extent of the law. All images on the Application are legally protected and are not to be used, reproduced, modified, or distributed without written consent of Manheim or its licensors.
 
B.   You and Manheim acknowledge that, in the event of any third party claim that your possession and use of the Application infringes that third party’s intellectual property rights, Manheim, not the Platform, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
 
C.    The Application, the content and information therein, and all improvements, additions, derivatives, and other modifications thereto, and any information pertaining to the foregoing, are the exclusive property of Manheim and/or its licensors, and shall be considered and treated by you as the proprietary information of Manheim or its licensors (the “Proprietary Information”). You acknowledge and agree that Manheim or its licensor(s) is the owner of the Proprietary Information and you agree that you have no right, title, or interest in any of the Proprietary Information except the right to use the Application and the Proprietary Information in accordance with and subject to this Agreement. You agree not to, directly or indirectly, disclose, sell, or otherwise transfer or exploit the Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Proprietary Information, or any portion thereof, without the prior written consent of Manheim, which may be withheld in Manheim’s sole discretion. You further agree not to challenge or assist with or participate in any challenge, directly or indirectly, of Manheim’s ownership of the Proprietary Information or any right, title, or interest therein or any portion thereof.
 
D.   You acknowledge and agree that Manheim is the owner of or has rights to the trade names, trademarks, and service marks “Manheim” and such other names, marks, and logos and other intellectual property Manheim used, uses, or may in the future use in or related to its business, products, or services, including, without limitation, all improvements, additions, derivatives, and other modifications thereof (the “Manheim Marks”). You agree that you have no right, title, or interest in any of the Manheim Marks. You further agree not to challenge or assist with or participate in any challenge, directly or indirectly, of Manheim’s ownership of or right to the Manheim Marks or any right, title, or interest therein or any portion thereof.
 
E.    You agree to not remove, obscure, or alter any copyright, trademark, or other proprietary rights notice affixed to, contained within, or accessed in conjunction with or through the Application. You further agree not to modify, adapt, translate, prepare derivative works from, transmit, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from any portion of the Application.
 
F.     You hereby grant Manheim a non-exclusive, perpetual, irrevocable, royalty free, worldwide license to reproduce, display, perform, distribute, transfer, sell, copy, store, transmit, modify and create derivate works from, including resizing, or otherwise use any photograph or image of a vehicle that you submit through the App for the purpose of selling the vehicle, whether through an auction or any online marketplace, and for any other business purpose as Manheim deems necessary or appropriate.
 
7.           SUPPORT AND MAINTENANCE. Manheim is not, and you acknowledge that the Platform is not, obligated to provide any support or maintenance services to User related to the Application. From time to time, the Platform, the App (including its services), or the Tools may be unavailable. During these times Manheim may, but is by no means under any obligation to, send you notifications regarding the App’s functionality. Any complaints related to the Application can be addressed to our Customer Service Manager.
 

8.           EXPORT CONTROL LAWS. You agree to comply with all United States and all other applicable laws, rules, and regulations relating to the export, re-export, or transshipment of the Application.

9.           U.S. GOVERNMENT END-USERS. The Application is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), any User who is a U.S. Government end user acquires the Application with only those rights set forth herein.

10.        ADDITIONAL TERMS FOR USERS OF THE APPLE AND GOOGLE MOBILE PLATFORMS.
 
A.    The following terms apply only to users of the Apple and Google Mobile Platforms (each a “Mobile Platform”). In the event of any conflict between this Section 10 and the rest of the Agreement, this Section will control only for users of their respective Mobile Platform.
 
B.   You must comply with all applicable third-party terms of agreement when using the Application. For example, your use of the Application must not violate the terms of your wireless data services agreement for the applicable Device.
 
C.   The Mobile Platform is a third-party beneficiary of this Agreement and may enforce this Agreement against you as a third party beneficiary. Subject to the rights of the Mobile Platform to enforce this Agreement as a third-party beneficiary, a person who is not a party to this Agreement has no right under any applicable law to enforce any term of this Agreement. Notwithstanding that any term of this Agreement may be or become enforceable by the Mobile Platform or other third party, the terms of this Agreement may be  amended or modified, and this Agreement may be suspended, cancelled, or terminated at any time for any reason by or on behalf of Manheim without the consent of the Mobile Platform or such other third party.
 
D.   YOU HEREBY REPRESENT AND WARRANT THAT (I) YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY; AND (II) YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
 
E.   YOU ACKNOWLEDGE THAT THE MOBILE PLATFORM HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION.
 
F.    YOU ACKNOWLEDGE THAT TO THE EXTENT PERMITTED BY LAW, THE MOBILE PLATFORM WILL NOT BE LIABLE TO YOU FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS, OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE APPLICATION.
 
G.   AS BETWEEN MANHEIM AND THE MOBILE PLATFORM, BUT SUBJECT TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, THE MOBILE PLATFORM WILL NOT BE RESPONSIBLE TO YOU FOR ANY CLAIM RELATING TO THE APPLICATION OR YOUR POSSESSION AND/OR USE OF THE APPLICATION, INCLUDING BUT NOT LIMITED TO, (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE APPLICATION FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.

11.         TAXES. You agree to be responsible for any and all taxes, duties, tariffs, or other such assessments of any value relating to this Agreement.

12.        ENFORCEABILITY. If, for any reason, a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.

13.        ASSIGNMENT. You may not assign these Terms without the prior written consent of Manheim, but Manheim may assign these Terms without any notice to you.

14.        HEADINGS. The headings in these Terms are for convenience only and have no legal or contractual effect.
 

15.        WAIVER. Any waiver of any provision of this Agreement will be effective only if in writing and signed by or on behalf of Manheim. No failure or delay by Manheim in exercising any right, power, or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms.

16.        INCORPORATION OF MANHEIM TERMS AND CONDITIONS, ADDEND AND OTHER AGREEMENTS. You acknowledge and agree that the entirety of the Manheim Terms and Conditions are incorporated into and form a part of this Agreement, including any Addenda with product- or feature-specific terms and conditions. In addition, you specifically acknowledge and agree to be bound by the provisions of the Manheim Terms and Conditions relating to indemnification, disclaimer of warranties, limitation of liability, choice of law and consent to jurisdiction, dispute resolution and class action waiver, and waiver and release of liability, as well as those included in any Addenda. These provisions affect your legal rights by, among other things, requiring you to submit disputes to binding, individual arbitration rather than a jury trial.
This Agreement is intended to be read consistently with other agreements you may have with Manheim and its affiliates, including, but not limited to, the Manheim Terms and Conditions and any policies, terms, or conditions linked from or incorporated into this Agreement, including any Addenda with product- or feature-specific terms and conditions. This Agreement does not modify or extinguish any such agreement except with respect to the specific subject matter hereof. In the event of a conflict between this Agreement and any such agreement, the more specific term(s) will control. Each of the parties acknowledge that they are not relying on any statements, warranties, or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement, and that they shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement save to the extent that they arise out of the fraud or fraudulent misrepresentation of another party.

17.        ELECTRONIC APPROVAL. You hereby acknowledge and agree that these Terms are being executed both in your individual capacity and in your capacity as an Authorized Representative for Client or an Authorized User of Client and that the approval of this document, if by e-signature, shall be deemed to satisfy all requirements imposed on electronic or digital signatures under applicable federal, provincial, and state law, including, as applicable, the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act“), 15 U.S.C. § 7001(a) et seq., the Ontario Electronic Commerce Act, 2000 SO c. 17, state or provincial electronic transactions or commerce laws, and any other similar laws relating to the validity or enforceability of electronic or digital signatures. You further acknowledge and agree that these Terms may be approved by affixing to this agreement an electronic or digital signature, which shall for all purposes be deemed effective to constitute the valid signature of the party affixing such electronic or digital signature.

18.        SURVIVAL. This section and the terms of Sections 6, 8, 9, 10 and 15 through 17 shall survive termination or expiration of this Agreement.
19.        CONTACT US. If you have any questions or concerns about these Terms, please contact our Customer Service Manager.

Addendum:360 Images Terms and Conditions

These Terms and Conditions are part of the Next Inspect Terms of Use. Unless otherwise specified below, all provisions of the Next Inspect Terms of Use apply to your use of the 360 Images. Some features may not be available in all territories or jurisdictions.

  • Licenses.

     1.  From You. In addition to the license granted in Section 6.F. of the Next Inspect Terms of Use, You further grant to Manheim, its affiliates, licensors and third party service providers, a non-exclusive, perpetual, irrevocable, royalty free, worldwide license to any photographs or images of a vehicle that you submit through the App to (a) provide services and create the 360 Images; (b) to use for our and their internal purposes and external marketing.

     2.  To You to Use the 360 Images. Subject to the terms and conditions of this Agreement and the Restrictions in Paragraph B below, Manheim hereby grants to you a limited, nonexclusive, nontransferable, non-assignable, non-sub-licensable, revocable, license to access, share, and/or display the 360 Images within the Manheim marketplaces solely by embedding the code or link provided by Manheim. No other use of the 360 Images is permitted.

  • Restrictions of Use of 360 Images. You agree that you shall only access, share, and/or display the 360 Images by embedding the code or link provided by Manheim; no other display, share or use of any kind of the 360 Images is permitted; and the 360 Images may not be converted, exported or otherwise modified (including without limitation conversion into other formats) except via functions provided by Manheim or its third party service provider.
  • Representations and Warranties. You represent and warrant that the photographs and images that you submit through the App (a) are not false or misleading; (b) do not and will not infringe any third party’s copyright, patent, trademark, trade secret or other intellectual or proprietary rights or rights of publicity or privacy; (c) do not violate these Terms; (d) will not cause injury to any person or entity; and (e) do not and will not violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising). You further represent and warrant that you are the you: (x) are at least 18 years old; (y) are the sole author and owner of the intellectual property rights in the photographs and images that you submit; and (z) voluntarily waive all “moral rights” that you may have in such photographs and images.

D. Indemnification for breach of License to use 360 Images. You agree to indemnify, defend and hold harmless Manheim, its affiliates, third party service provides and its and their successors and assigns, and all of their respective directors, officers, employees, and agents from any and all claims, losses, liabilities, judgments, settlements, damages, penalties, costs and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of, or related to, (i) any photograph(s) or image(s) of a vehicle that you submit through the App, (ii) your violation of the license granted; (iii) your breach or alleged breach of this Addendum and the Next Inspect Terms of Use or any representation or warranty herein or therein.