(a) “Affiliate” means any person that directly or indirectly controls, is controlled by, or is under common control with another person. For the purposes of this definition, a person “controls” another person if that person directly or indirectly possesses the power to direct or cause the direction of the management and policies of that other person, whether through ownership of voting securities, by contract or otherwise and “controlled by” and “under common control with” have similar meanings;
(b) “Agreement” means the Order Form and these Terms of Service.
(c) “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, applicable to the Processing of Personal Information under the Agreement.
(d) “Dealership” means the customer named in the applicable Order Form.
(e) “Dealership Data” means the data submitted or uploaded by or on behalf of Dealership to the Service, including the Personal Information of Dealership’s employees, contractors, or customers.
(f) “DMS” means a dealership’s Dealer Management System.
(g) “DMS Fees” means the fees charged by Dealer-FX for the implementation, set-up and integration of the DMS with the Service and any monthly charges or fees charged by the DMS provider and which are passed through to the Dealership by Dealer-FX.
(h) “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Dealer-FX generally makes available to subscribers to the Service, as the case may be.
(i) “Fees” means the fees specified on the applicable Order Form, including monthly Subscription Fees, DMS Fees, any third party access fees, and fees for Professional Services, as specified in the Order Form.
(j) “Initial Setup Start Date” means the date specified in the applicable Order Form on which Dealer-FX commences the setup and implementation of the Service in the Dealership’s environment.
(k) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
(l) “Order Form” means (i) an electronic form provided by Dealer-FX for ordering Subscriptions, Support Services, and/or Professional Services, or (ii) a written document executed by Dealer-FX and Dealership in respect to Dealership’s purchases of Subscriptions, Support Services, and/or Professional Services from Dealer-FX.
(m) “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
(n) “Professional Services” means the implementation, set-up, integration, training and other professional services provided by Dealer-FX or a Dealer-FX authorized services partner, pursuant to an Order Form and which services, the fees therefor and any other terms and conditions applicable thereto shall be described in the Order Form.
(o) “Service” means the cloud-based hosted version of the Software for which Dealership is granted rights of access and use in accordance with this Agreement, where specified in an Order Form, which resides on a server operated by or on behalf of Dealer-FX and which will be remotely accessible over the Internet by Dealership and its Users, including any ancillary mobile applications and other services available in connection therewith, as such Service may be updated from time to time by Dealer-FX in its sole discretion.
(p) “Service Availability” means the number of minutes in a month that the Dealership is able to log in to its Dealer-FX Account and key components of the Service are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance or emergency maintenance that is necessary to prevent imminent harm to the Service, (b) events of force majeure, (c) malicious attacks on the Service, (d) issues associated with the Dealership’s network or equipment, (e) inability to deliver the Service because of acts or omissions of Dealership or (f) suspension, and/or termination of Dealership’s access to or use of the Service in accordance with this Agreement.
(q) “Software” means Dealer-FX’s proprietary ONE Platform™ and Service Scheduling software program(s) in machine-readable object code format and other related software specified in an Order Form, including the Documentation for such program(s) and which is made available by Dealer-FX as a software-as-a-service offering for use by Dealership in accordance with the terms hereof.
(r) “Subscription” means the right granted by Dealer-FX to Dealership to access and use the Service in accordance with and subject to the terms of this Agreement for the Subscription Term specified in the applicable Order Form.
(s) “Subscription Fee” means the fee payable by Dealership for a Subscription as set out in the Order Form.
(t) “Subscription Term” means the period of time that Dealership is authorized by Dealer-FX to access and use the Service (including the Documentation) as specified in the Order Form.
(u) “Support Services” means the technical support services for the Service provided by Dealer-FX as described in Section 6.1 hereof.
(v) “User” means an employee or contractor of Dealership to whom Dealership (or Dealer-FX at Dealership’s request) has supplied a user identification and password.