TERMS AND CONDITIONS The Products specified hereunder are subject to these Master Terms and Conditions, and any product-specific Supplemental Terms and Conditions set forth on an attached Appendix and/or on the applicable Order Form, if any. These Master Terms and Conditions, together with the Service Agreement Form and any applicable Supplemental Terms and Conditions (collectively, the “Agreement”), set forth the terms under which the Products are being licensed or otherwise made available to Dealer and/or Installer. By Accepting the Agreement, the individual signing up represents that he or she is authorized by Dealer and/or Installer to sign up and is agreeing to be bound by this Agreement, both individually and on behalf of Dealer and/or Installer. Please read this Agreement (including any Supplemental Terms and Conditions) carefully prior to Accepting, using or accessing any Product. 1. Definitions. “Accept” or “Accepting“ or “Acceptance“ means using or accessing any Product, or signing the Order Form or clicking the “submit”, “order”, “agree” or other similar acknowledgement to purchase or subscribe to any Product. “Affiliate“ means a joint venturer or business entity that, directly or indirectly, controls, is controlled by, or is under common control with, another business entity. For purposes of this definition only, the term “control“ means legal, beneficial, or equitable ownership, directly or indirectly, of a business entity. “Affiliate Materials“ means data or other materials made available by Provider’s Affiliates, which may include vehicle description information, valuation and pricing data, vehicle sales data and other related materials being licensed or sublicensed by such Affiliates. “Authorized Users“ means Dealer and/or Installer Personnel that have been issued a username, password or other log-in credentials to access the Product(s) in accordance with this Agreement. “Confidential Information“ means non-public information that the Disclosing Party provides to the Receiving Party during the Term that is identified in writing at the time of disclosure as confidential or that the Receiving Party knows or reasonably should know is considered confidential by the Disclosing Party given the nature of the information disclosed and the circumstances of such disclosure. “Consumer Data“ means any personally identifiable information (as defined under the Gramm-Leach-Bliley Act) or any similar personal data or consumer information that is subject to special treatment under any federal or state consumer protection Law. “Dealer“ means an automobile dealership in the United States or Canada that sells and services motor vehicles under an agreement with a vehicle manufacturer. “Installer” means an automobile service center in the United States or Canada that services motor vehicles not under agreement with a vehicle manufacturer. “Dealer Data“ means any data or information that Dealer or any Authorized User may upload, store, maintain or transmit through any Product. "Installer Data” means any data or information that Dealer or any Authorized User may upload, store, maintain or transmit through any Product. “Dealer DMS Data“ means data or information stored or maintained in Dealer’s DMS, including, vehicle inventory data, vehicle specifications and descriptions, photographs, Vehicle Identification Numbers (VINs), valuation and pricing information and any other data or information relating to Dealer’s business. “Dealer Location“ means the specific physical Dealer location(s) identified on the applicable Repair Order Form. “Dealer Personnel“ means all officers and employees of Dealer. “Disclosing Party“ means the party that provides Confidential Information to the Receiving Party during the Term. “DMS“ means a dealer management system, which is an enterprise management information system offered specifically for automotive industry car dealerships. “Feedback“ means any information, suggestions, ideas, enhancement requests, recommendations, comments and other feedback that Dealer or any Authorized User may disclose, transmit or offer to Provider or its Affiliates with respect to any Product or Generated Content, or with respect to any underlying technology or Intellectual Property comprising any of the foregoing. “Fees“ means, collectively, all fees due and payable from Dealer and or Installer to Provider, including Subscription Fees, Setup Fees, and Miscellaneous Fees. “Force Majeure Event“ means a circumstance whereby a party’s delay in performing its obligations hereunder is due to causes beyond such party’s reasonable control, including fire, flood, earthquake or acts of God,
acts of war, acts of a public enemy, labor disruptions affecting employers generally, acts of a nation or any state, territory, or other political division, terrorism, riots, civil disorders, epidemics, pandemics, theft, quarantine restrictions, internet or other service disruptions involving hardware, software or power systems not within such party’s reasonable control (including denial of service attacks or unauthorized network intrusions). “Generated Content“ means data, information, content or other materials that may be generated by or through Products. “Initial Term“ means the initial Subscription period specified on the applicable Order Form. “Intellectual Property“ means anything that is or could be protected by the intellectual property laws of the United States or of any other country, including laws relating to patents, copyrights, trademarks, service marks, trade names, domain names and trade secrets; and “Intellectual Property Rights“ means any patents, copyrights, trademarks, service marks, trade names, domain name rights and trade secret rights, internationally. “JAMS“ means the organization formerly known as Judicial Arbitration and Mediation Services, Inc., which provides alternative dispute resolution services; information regarding JAMS is available at the following URL: http://www.jamsadr.com; and “JAMS Streamlined Rules“ means the JAMS Streamlined Arbitration Rules and Procedures, then-current versions of which are available at the following URL: http://www.jamsadr.com/rules- streamlined-arbitration. “Laws“ means all applicable federal, state, provincial, and local laws, regulations, rules, ordinances and other decrees of any governmental authority. “Miscellaneous Fees“ means any fees, charges or other amounts associated with the Products, Online Platforms or any Generated Content, other than Setup Fees and Subscription Fees. “Order Form“ means, as applicable, either: (a) a Provider-approved ordering document that is executed by a Dealer and/or Installer and transmitted by such Dealer to Provider, and/or (b) the purchase or subscription confirmation page displayed on the applicable Provider website upon Dealer’s completion Provider’s online checkout process. “Online Platform“ means a Provider SaaS Product hereunder. “Personal Information“ means information that may be used to identify or locate a natural person, including, but not limited to, the following: (a) first and last name, physical address, telephone number or driver’s license number; or (b) any other information that has the capacity to identify or locate a specific person. “Privacy Laws“ means all applicable privacy Laws and information security Laws as they exist and are amended from time to time of any state in the United States, and any province in Canada, relating to: (i) data privacy, security, integrity, confidentiality, communications, use, collection, processing and storage, and (ii) spamming and other unsolicited communications, including, as applicable, the U.S. Gramm-Leach-Bliley Act of 1999 (e.g., 16 C.F.R. Part 313 (Privacy Rule) and 16 C.F.R. Part 314 (Safeguards Rule)), and the U.S. Telephone Consumer Protection Act of 1991 (TCPA), Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), and Canada’s Anti-Spam Legislation (CASL). “Product“ means a software product or service identified on an Order Form used to purchase or subscribe to such product or services, the Product Content and the Product Data, and “Products” refers, collectively, to all of the software products and services that may be identified on an Order Form hereunder. “Product Content“ shall mean the software, object code, images, graphics, icons, logos, text (including without limitation tutorials, user manuals, help files and other documentation), structured text (including without limitation CSS, XML and HTML data) and multimedia data contained in or made available through the Product. “Provider“ means Service Write, Inc., a North Carolina corporation doing business as ShyftAuto, or one of its Affiliates, as specified on the applicable Order Form. “Provider Marks“ means any name, logo, trademark or service mark of Provider or its Affiliates. “Renewal Term“ means each renewal of a Subscription following the applicable Initial Term, with the period of such Subscription renewal being monthly unless specified otherwise in the applicable Order Form. “SaaS“ means internet-based multi-tenant software-as-a-service offerings comprised of application software and associated data with access to and use of such offerings being available solely on a subscription basis. “Set-up Fees“ mean any one-time set-up, installation, implementation or similar fees associated with configuration and deployment of a Product pursuant to an Order Form. “Subscription“ means the right to access and use a Product during the Term. “Subscription Fees“ mean the recurring subscription fees for the Products to which Dealer is subscribed pursuant to an Order Form. “Supplemental Terms and Conditions“ means any special product-specific terms and conditions set forth on the attached Appendices, or such additional terms and conditions as may be agreed upon by the Parties and set forth on the applicable Order Form.
“Term“ means the Initial Term and any Renewal Term(s) of a Subscription under this Agreement and the applicable Order Form. “Third Party“ means any person or entity that is neither a party nor an Affiliate of a party. 2. Product Orders. Upon Dealer’s Acceptance of an Order Form, the applicable Subscription(s) to the Product(s) identified on such Order Form will commence. Dealer acknowledges and agrees that (i) Order Forms may be executed via Provider’s established electronic processes (e.g., digital signature), and (ii) any such Provider- established process for Acceptance of Order Forms will be deemed effective to constitute the valid signature of Dealer. Unless set-up and installation of the Product(s) is specifically provided for on the applicable Order Form, the Products will be made available to Dealer and its Authorized Users through either an Online Platform, or an application or software program installed by Dealer onto its system(s). Dealer will be solely responsible for any software, hardware, connection, and other equipment that may be necessary in order for Dealer and its Authorized Users to install, access and/or use any Product. The Products are intended only to facilitate the management and operation of certain aspects of Dealer’s automotive business at the Dealer Location(s).. 3. Authorized Dealer Location(s). Subject to Dealer’s compliance with this Agreement, including payment of all Fees, Provider will provide and make available to Dealer and its Authorized Users the Product(s) identified on any Order Form. 4. License to Product(s). Provider grants to Dealer and its Authorized Users a limited, non-exclusive, non- sublicensable and non-transferable right and license to use and access the Product(s) to which Dealer is subscribed. 5. Authorized User(s). Provider will issue to Authorized Users designated by Dealer a username, password and any other log-in credentials necessary to access the Products (except in the case of Products that allow a Dealer “admin” or other user to directly issue such log-in credentials to Authorized Users). Authorized Users may be required to Accept certain Terms of Service. Any username, password or other log-in credentials issued by Provider or Dealer to any Authorized User for purposes of accessing any Product or Online Platform is confidential and may not be shared with any Third Party. 6. Restrictions. Neither Dealer nor any Authorized User shall: (a) use or access any Product or use or publish any Generated Content in a manner not expressly authorized under Section 4; (b) except as otherwise permitted in the Appendices, if any, offer, sell, rent, lease, sublicense, transfer, distribute or provide access to or otherwise make available to any Third Party any Product or Generated Content or any documentation or other information relating thereto; (c) reproduce, modify, translate, reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of any Product, Product Content, and/or Product Data (including source code provided by any Third Party Licensor), or develop or create any derivative works of or relating to any Product or any underlying technology or intellectual property comprising any Product or Online Platform; (d) scrape or data-mine any Product, Online Platform or any other website of Provider or its Affiliates (including through the use of any robot, spider or other automated device); (e) publish, transfer, license, distribute or export any Generated Content or other data from any Product or Online Platform (f) violate any Law or any Intellectual Property Rights or other rights of any third party. 7. Dealer Data. Dealer is solely responsible for the accuracy and content of any Dealer Data. Except as provided for in an Appendices, if any, the Products and Online Platforms are not intended to store, maintain or transmit any personally identifiable information (as defined under the Graham-Leach-Bliley Act) or any similar Consumer Data, and neither Dealer nor any Authorized User or other Dealer Personnel may upload, store or maintain any Malicious Code on or within any Product or Online Platform, or otherwise transmit any Consumer Data through any Product or Online Platform. 8. Proprietary Rights. Except for the rights expressly granted to Dealer and its Authorized Users under Section 4, neither Dealer nor any Authorized User shall have any right, title or interest in or to any Product(s) or any underlying technology or Intellectual Property comprising any Product(s), and nothing in this Agreement or in any Order Form shall effect a transfer of any Intellectual Property Rights or any other ownership right from Provider, its Affiliates, or any Third Party Licensor, on the one hand, to Dealer or any Authorized User or any other Third Party, on the other hand. Dealer acknowledges that no rights or licenses are being granted to Dealer or any Authorized User with respect to any Provider Marks, and Dealer shall obtain the written consent of Provider prior to any use or display of any Provider Mark by Dealer or any Authorized User. Provider and any Third Party Licensors, as the case may be, shall retain all Intellectual Property Rights and all ownership rights in and to the Products, the Online Platforms and all Provider Marks.
9. DMS Integration. To the extent any Product is designed for integration with Dealer’s DMS, Dealer expressly authorizes and grants permission to Provider and its Affiliates to access such DMS through any interconnect, bridge or other device or method for the purpose of accessing, polling, copying, extracting, writing, modifying and downloading Dealer DMS Data. Provider and its Affiliates may use the Dealer DMS Data only in connection with developing or producing any Generated Content.. Dealer shall promptly notify Provider in writing in the event that Dealer identifies any errors or omissions with respect to any Dealer DMS Data. Provider may be required by law, rule or regulation to make the following disclosure: NOTICE TO NORTH CAROLINA DEALERS: THIS AGREEMENT RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA. 10. Fees and Payments. In exchange for the rights and licenses granted to Dealer in this Agreement, Dealer shall pay to Provider the Set-up Fees and Subscription Fees set forth in the applicable Order Form. If any “free period” is provided with respect to a Product, it shall be noted on the Order Form and, following expiration of the trial period, Fees shall be payable as provided in the Order Form. Any amounts invoiced to Dealer are due and payable in full within fifteen (15) days of the date set forth on the applicable invoice (unless otherwise set forth in the applicable Order Form). 12. Subscription Term. This Agreement shall continue in full force and effect at all times during which Dealer has a Subscription to any Product or Generated Content. Dealer’s subscription to the Products shall be for the Initial Term specified on the applicable Order Form. The Initial Term for any Product shall commence on the date set forth on the applicable Order Form, or, if no commencement date is set forth on the applicable Order Form, the date on which Dealer or any Authorized User is first provided access to such Product by Provider. Unless otherwise set forth on the applicable Order Form, Dealer’s Subscription to any Product shall automatically renew, on a month-to-month basis, at the end of the applicable Initial Term, with each such month constituting a Renewal Term, until such Subscription is terminated or cancelled by a party pursuant to Section 13. 13. Termination; Subscription Cancellation. At Provider’s election, this Agreement or any applicable Order Form may be immediately terminated by Provider: (i) upon any material breach by Dealer or any Authorized User or other Dealer Personnel of this Agreement or any Terms of Service which has not been cured within ten (10) days after notice of such breach is provided to Dealer; (ii) upon the filing of any bankruptcy, insolvency or other similar petition or filing by, on behalf of, or against Dealer or its parent company. Dealer acknowledges that Provider shall have the right at any time to cease offering any Product or Online Platform to Dealer, or to modify or change any Product or Online Platform or any feature or functionality thereof (including, without limitation, in any case where Provider believes that an Product or any feature or functionality thereof, or any Online Platform, may infringe or otherwise violate the Intellectual Property Rights of any Third Party, or any Law), in each case without notice to Dealer. Provider may also elect to cease doing business with Dealer may terminate or cancel its subscription to any Product as provided for in the applicable Order Form or this Agreement. 14. Representations and Warranties. Dealer represents and warrants to Provider that (a) it is a corporation, limited liability company or other lawfully formed business entity that has been duly organized and that is validly existing and in good standing under the Laws of the state in which it was organized; (b) it has obtained and shall maintain the power and authority to enter into this Agreement and any Order Form and to undertake all obligations hereunder and thereunder, in each case without the consent of any other person or entity; (c) it is not a party to any contract or agreement or any litigation that would prohibit or restrict it from entering into this Agreement or any Order Form or otherwise performing any of its obligations hereunder or thereunder; (d) it and its Authorized Users will comply at all times with all Laws, including all Laws relating to privacy, unfair competition, deceptive trade practices, and advertising, and any consumer protection Laws (and it shall provide Provider with evidence of such compliance upon the request of Provider); (e) Dealer will maintain information security measures and data protection safeguards consistent with applicable Privacy Laws and designed to ensure reasonable protection of Consumer Data, to include protecting the security, integrity, privacy and confidentiality of such data. (f) use of and access to the Product(s) and any Generated Content by it and its Authorized Users and Dealer Personnel do not infringe or otherwise violate any Intellectual Property Rights or any other rights of any Third Party; (g) to the extent any Product is designed for integration with any DMS System, Dealer has all rights and licenses necessary to grant Provider and its Affiliates access to such DMS System and to provide the applicable Dealer DMS Data stored thereon to Provider and its Affiliates and any access, polling, copying, extraction and downloading of, modifying and exporting such Dealer DMS Data and any use thereof by Provider and its Affiliates as set forth in Section 9 does not and will not infringe or violate the Intellectual Property Rights and other contractual rights of any Third Party. 15. Indemnification. Dealer shall, at its expense, defend, indemnify and hold harmless Provider and its Affiliates, and its and their respective licensors and service providers (including any Third Party Licensor or other provider of
Third Party Materials), and the officers, employees, representatives and agents of each of the foregoing (collectively, the “Provider Related Parties“), from and against any and all claims, judgments, losses, damages, demands, payments, fines, costs, expenses (including reasonable attorneys’ fees and court costs), liabilities and recoveries of any nature or description incurred by any Provider Related Party arising out of or related to a breach of any provision of this Agreement. 16. Confidential Information. Dealer agrees not to disclose or allow any Dealer Personnel to disclose, and not to use or allow to be used other than as set forth in this Agreement, any information or materials that are provided or otherwise disclosed by or on behalf of Provider or its Affiliates. 17. Limitation of Liability. Dealer shall use the Product at its sole risk. Provider or its Affiliates disclaim all liability arising from or connected with the Product, services, data, or transport of any vehicle, including, without limitation, any damage or loss to a vehicle, personal property, or any other property. Provider or its Affiliates have no liability for any act, omission or decision. The Product and services are provided on an “as is” and “as available” basis. Provider or its Affiliates will not be liable for any damages whatsoever, including direct, indirect, incidental, special, consequential or exemplary damages, even if advised of the possibility of such damages. In no event will aggregate liability to any party or third party in any matter arising from, relating to or connected with the Product or services or these terms exceed the sum of the total aggregate amount paid by Dealer to Provider under this Agreement. 18. Remedies. Dealer acknowledges and agrees that the wrongful disclosure of any Provider Confidential Information or any unauthorized use of any Product, Online Platform or Generated Content may cause irreparable injury to Provider and its applicable Affiliates, and that remedies other than injunctive relief may be inadequate. Accordingly, Provider shall have the right to seek equitable and other injunctive relief to prevent any wrongful disclosure of any Confidential Information or any unauthorized use of any Product, Online Platform or Generated Content (in each case without the posting of any bond or similar security), as well as such damages and other relief to which Provider or its Affiliates may be entitled under this Agreement or pursuant to any Law. 19. DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 14, NEITHER PROVIDER NOR ANY OF ITS AFFILIATES OR ITS LICENSORS, INCLUDING ANY THIRD PARTY LICENSORS, MAKES ANY REPRESENTATION OR WARRANTY TO DEALER OR ANY OTHER PERSON WITH RESPECT TO ANY PRODUCT, ONLINE PLATFORM OR GENERATED CONTENT (OR ANY THIRD PARTY MATERIALS), EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF TITLE, SUITABILITY, LEGALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 20. ARBITRATION AND CLASS WAIVER. a. DEALER AGREES TO ARBITRATE ANY DISPUTE OR CLAIM THAT IT MAY HAVE WITH PROVIDER THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT OR ANY ORDER FORM OR DEALER’S USE OF OR ACCESS TO ANY PRODUCT, ONLINE PLATFORM OR GENERATED CONTENT. b. ANY DISPUTE OR CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 20 SHALL BE SUBMITTED TO BINDING ARBITRATION ADMINISTERED BY JAMS PURSUANT TO THE JAMS STREAMLINED RULES. THE DISPUTES AND CLAIMS SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 20 WILL BE RESOLVED BY A SINGLE ARBITRATOR SELECTED PURSUANT TO THE JAMS STREAMLINED RULES. THE ARBITRATOR SHALL BE BOUND BY AND SHALL STRICTLY ENFORCE THIS AGREEMENT AND ANY OTHER APPLICABLE AGREEMENT BETWEEN DEALER AND PROVIDER, AND MAY NOT LIMIT, EXPAND OR OTHERWISE MODIFY ANY OF THE PROVISIONS OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN DEALER AND PROVIDER. THE ARBITRATOR MAY AWARD ANY RELIEF THAT A COURT OF LAW COULD. EACH PARTY WILL BEAR ITS OWN EXPENSES IN THE ARBITRATION AND WILL SHARE EQUALLY THE COSTS OF THE ARBITRATION; 21. Force Majeure. Neither party shall be liable for any failure or delay in performing any obligation under this Agreement or any Order Form, except the requirement to pay Fees in accordance with the terms of this Agreement, to the extent such failure or delay is attributable to any act of God or other condition or event outside of its reasonable control. 22. Notices. All notices, demands and requests required or permitted to be given by Dealer under this Agreement or any Order Form shall be (a) in writing; (b) sent by commercial delivery service or certified mail, return receipt requested; (c) deemed to have been given on the date set forth in the records of the delivery service or on the return receipt; and (d) addressed to Provider at its address as set forth on the applicable Order Form (or, if no such address is provided, the main office address of Provider as set forth on its website).