TERMS AND CONDITIONS FOR AUTOMOTIVE ECOMMERCE

These Automotive eCommerce Terms and Conditions (as the same may be amended, modified, and supplemented from time to time) (these "Terms") plus a signed Order Form shall constitute the Agreement between the Parties with respect to the subject matter hereunder. The Agreement shall govern the provision of the Services (as defined below) by Inmar Intelligence Automotive, LLC, a Delaware limited liability company ("Inmar Intelligence Automotive") with its principal offices located at 1 W. Fourth Street, Suite 500, Winston-Salem NC 27101. Inmar Intelligence Automotive and Dealer may be referred to herein as a "Party" or collectively as "Parties."

Defined Words and Phrases.

In addition to capitalized terms defined elsewhere herein, the following capitalized terms shall have the meanings set forth below:
1. "Affiliate" means any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control of a Person means the power, direct or indirect, to direct or cause the direction of the management and policies of such a Person, whether through the ownership of voting securities, by contract or otherwise.
2. "Dealer Data" means data provided to Inmar Intelligence Automotive by the Dealer, Dealer’s Affiliate(s), or Dealer’s vendors, and Processed by Inmar Intelligence Automotive through the Services, including, but not limited to, End Customer PII, data related to sales and service transactions, marketing materials, corporate or dealership information.
3. "Dealer Properties" means the website(s) owned or controlled by Dealer which integrates the Inmar Tags.
4. "Deliverables" means any: (i) Dealer-facing reports furnished by Inmar Intelligence Automotive to Dealer in connection with the Services; and (ii) marketing materials produced by Inmar Intelligence Automotive for End-Customers in connection with the Services which marketing materials are approved by Dealer prior to use.
5. "End Customers" means any person or entity that utilizes the Dealer’s website to facilitate Transactions with Dealer.
6. "End Customer PII" means any PII from the End Customers.
7. "Inmar Tags" means pixels, javascript, or other unique technology or tracking codes provided by Inmar Intelligence Automotive or its vendors and which are placed on Dealer Properties.
8. "Person" means any natural person, corporation, company, partnership, limited liability company, cooperative, trust, estate, joint venture, or other entity or association.
9. "Personally Identified Information (PII)" means any information used or intended to be used to identify a particular individual, including name, address, telephone number, email address, account number and government-issued identifier.
10. "Process" means any operation or set of operations which is performed upon Dealer Data, whether or not by automatic means, such as viewing, hosting, printing, backing up, collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, disposal or destruction.
11. "Services" are the services provided by Inmar Intelligence Automotive for the benefit of Dealer as specified under the Order Form.
12. "Service Fees" means the fees payable by Dealer to Inmar Intelligence Automotive in accordance with the Order Form.
13. "Transaction" means the use of Dealer’s website to consider and/or facilitate the sale of a vehicle (whether new or pre-owned) and any ancillary oﬀerings (e.g., financing, warranty extensions or upgrades, vehicle services, etc.) by Dealer to an End-Customer
Services.

Inmar Intelligence Automotive provides a variety of data, media and marketing services to automotive dealerships. Inmar Intelligence Automotive will provide Dealer with certain marketing services based on Dealer Data and data obtained from various other sources. The specific services to be furnished are described in the Order Form. Each Order Form must be signed by all parties. In the event of a conflict between an Order Form and the Terms, the Terms will govern unless the Order Form specifically references a provision of the Terms that is to be overridden and the manner in which it is to be changed. Any marketing materials produced for Dealer pursuant to the Services are herein referred to as "Creative Deliverables". All other Deliverables produced for Dealer pursuant to the Services are herein referred to as "Analytics Deliverables".
Dealer Obligations.
1. Commitment of Resources. Dealer agrees that the Services require Dealer’s commitment of certain Dealer resources and the provision of Dealer Data to Inmar Intelligence Automotive. Dealer shall cooperate with Inmar Intelligence Automotive and provide all reasonable assistance in order to allow Inmar Intelligence Automotive to provide the Services agreed upon. Dealer acknowledges that such cooperation and assistance is necessary to enable Inmar Intelligence Automotive to perform the Services and that Dealer’s failure to timely fulfill its obligations under this Section 3 shall not constitute a basis for the retention of required payments and/or allegations of breach of contract by Dealer.
2. Creative Deliverables. If the Services require Inmar Intelligence Automotive to deliver Creative Deliverables, then Dealer will furnish Inmar Intelligence Automotive with Dealer’s usage guidelines for Dealer’s trade and service marks and for any brands or products of third parties that are included in the Creative Deliverables. Inmar Intelligence Automotive will submit all Creative Deliverables to Dealer for Dealer’s approval prior to any usage thereof. Dealer shall have 5 days to review and approve or reject the Creative Deliverables, which shall be provided in writing (including via email). Dealer will provide specific reasons for any rejection. If Dealer fails to approve or reject within 5 days, the Creative Deliverables will be deemed to be rejected and will not be placed in any media or promotional activities. Dealer represents and warrants that it has all necessary rights to permit Inmar Intelligence Automotive to use any third party trademarks, names, or logos included in any Dealer approved Creative Deliverables, and assumes all liability for their use in the approved Creative Deliverables.
3. Optional SmartPIXL Requirements. In the event Dealer elects on the Order Form to place an Inmar Tag licensed by Inmar Intelligence Automotive from M1 Data & Analytics, LLC d/b/a SmartPIXL ("SmartPIXL") on Dealer’s website(s), Dealer acknowledges that it shall be considered an END USER of the software embodying the Inmar Tag and subject to the M1 Terms of Use, a copy of which is attached hereto as Schedule 2, and shall agree to the additional obligations in Section 10.
Project Manager.

Dealer has designated a Project Manager as set forth on the Order Form to serve as its representative for all purposes related to the Services to be provided under that Order Form (the "Project Manager"). Dealer has delegated to the Project Manager the authority to make decisions on Dealer’s behalf for purposes of interaction with Inmar Intelligence Automotive. Dealer may designate a replacement for the Project Manager at any time with prior written notice to the other Parties, provided that any person designated as Dealer’s Project Manager will have managerial oversight of day-to-day operations in connection with the Services described in the Order Form.
Term; Termination.
1. Term. The Term shall be set forth on the Order Form.
2. Termination. Any Party may terminate an Order form upon written notice in the event of default by another Party, if such default continues beyond a period for cure provided in the Section 16 (Default) hereunder.
3. General Consequences of Termination. Upon the effective date of termination of an Order Form: (i) Inmar Intelligence Automotive shall cease providing the Service(s); and (ii) Dealer shall pay any and all payment obligations that have accrued for Service(s) provided but remaining unpaid at the time of termination. Except as otherwise expressly stated in these Terms, neither Party will have continuing rights to use any Confidential Information of the other Party after termination, provided that inmar Intelligence Automotive nor its subcontractors or Affiliates will be required to remove from its platform any aggregated data that may have been derived from data inputs provided pursuant to these Terms but that have been stored within general data stores in de-identified form and in a manner that cannot be attributed to source, with respect to which Inmar Intelligence Automotive, and its subcontractors and Affiliates shall retain rights to aggregate, manipulate and create derivative works.
Fees and Payments.
1. Fees. Fees for the Services ("Fees") shall be set forth on the Order Form. Invoices are due and payable net thirty (30) days after the date of Inmar Intelligence Automotive’s invoice. Late payments shall be subject to a penalty of 1.5% interest per month. Any disputes by Dealer regarding invoices must be communicated to Inmar Intelligence Automotive within fifteen (15) days of the date of invoice, or such invoice shall be binding on Dealer for all purposes and Dealer shall be deemed to have waived any right to object to such invoice.
2. Taxes. All amounts payable shall exclude all applicable sales, use and other similar taxes and similar charges. Dealer will be responsible for payment of all such taxes (other than taxes based on the income of Inmar Intelligence Automotive), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees under these Terms, the grant of any license rights pursuant to these Terms, or the delivery of related services. Dealer will make all payments to Inmar Intelligence Automotive free and clear of, and without reduction for, any withholding taxes.
Deliverables; Intellectual Property and Data.
1. Creative Deliverables. Dealer will own all Intellectual Property Rights that are embodied in the Creative Deliverables (subject to any licenses granted to Dealer by third party automobile manufacturers). The Creative Deliverables will constitute works for hire to the extent permissible under the U.S. Copyright Act and Dealer shall be the owner and author thereof. If any Creative Deliverables do not qualify as works made for hire under the U.S. Copyright Act, Inmar Intelligence Automotive hereby expressly assigns to Dealer all right, title and interest in and to the Creative Deliverables, including all copyrights therein and renewals and extensions thereof.
2. Analytics Deliverables. Inmar Intelligence Automotive shall own and retain all Intellectual Property Rights that are embodied in the Analytics Deliverables (other than any Dealer Confidential Information, Dealer Data and/or Dealer Marks within Deliverables). Subject to the limitations set forth in Sections 7(d) and 7(e), Dealer shall have a perpetual, non-exclusive license to all Analytics Deliverables provided pursuant to these Terms.
3. Intellectual Property. Except for the Creative Deliverables, Inmar Intelligence Automotive shall own and continue to own all rights it may have in intellectual property developed, invented, gathered, or created by Inmar Intelligence Automotive before or during the Term. Except for the ownership and license grant set forth in Sections 7(a), (b), (d) and (e) and 8, these Terms shall not be construed to grant to either Party any right, title, or interest in any intellectual property rights owned by the other Party. Without limiting the foregoing, all intellectual property rights, title, and interest in the methodology, technology, and know-how that Inmar Intelligence Automotive uses to perform the Services pursuant to these Terms, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar Intelligence Automotive.
4. Data Usage. Data collected or generated by Inmar Intelligence Automotive in the performance of the Services and held by Inmar Intelligence Automotive in a form that is identifiable to Dealer or any End Customer shall be and shall remain the property of Dealer ("Service Data"). Inmar Intelligence Automotive shall have a perpetual, royalty-free, non-exclusive license to use Service Data to perform the Services, and to aggregate, or otherwise manipulate, or create derivative works from, Service Data in a form that is not identifiable to Dealer or any End Customer.
5. Data Portal. Inmar Intelligence Automotive may provide Dealer with a web-based reporting portal with proprietary data access ("Data Portal"). Dealer shall not grant access to the Data Portal to any third party. If Dealer desires for a third party to have access to the Data Portal, Dealer may make a request to Inmar Intelligence Automotive in writing, and Inmar Intelligence Automotive may grant the third party such access at Inmar Intelligence Automotive’s sole discretion.
Limited Trademark Licenses.

Dealer grants to Inmar Intelligence Automotive a nonexclusive, non-transferable, limited right and license to use the trademarks, name and logos of Dealer and of the manufacturers that produce the automobiles sold by Dealer (collectively, the "Dealer Marks") as necessary to perform the Services. The license granted by this paragraph does not include any rights to utilize the Dealer Marks in any manner to indicate Inmar Intelligence Automotive’s affiliation with, or endorsement or sponsorship by, Dealer or such automobile manufacturers. Inmar Intelligence Automotive may not create any combination mark using any Dealer Marks, nor any confusingly similar mark, and Inmar Intelligence Automotive shall not attempt to register any Dealer Marks in any jurisdiction. As between Dealer and Inmar Intelligence Automotive, all goodwill arising in the Dealer Marks shall inure solely to the benefit of Dealer or such automobile manufacturers.
Platform Technologies.

The Parties acknowledge that the Services will utilize proprietary systems of Inmar Intelligence Automotive and its Affiliates, and/or their subcontractors having been developed over time at substantial expense, and Inmar Intelligence Automotive, its Affiliates and/or subcontractors may, in the course of performing the Services, from time to time develop improvements or extensions to its systems and processes. Accordingly, without limiting Section 7(b) (Analytics Deliverables) herein, the Parties agree that, as between Inmar Intelligence Automotive and Dealer, Inmar Intelligence Automotive and its subcontractors and Affiliates will own and retain all intellectual property rights in the proprietary software, systems and processes utilized by Inmar Intelligence Automotive and/or its subcontractors or Affiliates to perform the Services, and in all software, inventions or other proprietary information or subject matter and/or its subcontractor or Affiliates develops in the course of performing the Services (collectively, "Inmar Intelligence Automotive Platform Technology"), subject in all cases to Dealer’s (and Dealer’s licensors’) continuing rights in Dealer’s Confidential Information and in the Dealer Data. No license is granted with respect to any Inmar Intelligence Automotive Platform Technology, and Dealer acknowledges that Inmar Intelligence Automotive will have no obligation to deliver any Inmar Intelligence Automotive Platform Technology or any component thereof.
Privacy; Security.
1. Additional Optional SmartPIXL Dealer Obligations.
  1. To the extent Dealer opts to place the SmartPIXL tag, Dealer will ensure that the Dealer Properties which provide information from End Customer contain a posted privacy notice that (i) discloses the usage of third-party tracking technology, (ii) discloses the data collection and usage resulting from the Services described herein, (iii) complies with all applicable privacy laws, rules, and regulations and (iv) states the following: "This site is being monitored by one or more third-party monitoring software(s), and may capture information about your visit that will help us improve the quality of our service. You may opt-out from the data that SmartPiXL is collecting on your visit through a universal consumer options page located at https://smart-pixl.com/Unsub/unsub.html."
  2. CCPA. To the extent Dealer opts to place the SmartPIXL tag on Dealer Properties, and in accordance with the CCPA, Dealer shall provide (i) a link entitled "Do Not Sell My Personal Information" or "Do Not Sell My Info" (the "Do Not Sell Link") on the "homepage" (as such term is defined under the CCPA) of the Dealer Properties where Inmar Intelligence Automotive or SmartPIXL collects information about or from the End-Customer through the Inmar Tags and/or (ii) explicit notice of the End-Customer’s right to opt-out through such Do Not Sell Link (as set forth in Section 1798.120 of the CCPA). Such Do Not Sell Link shall permit End-Customers to opt-out of the collection activities set forth above, at a minimum, the particular Dealer Property on which such Do Not Sell Link resides.
2. Security. Inmar Intelligence Automotive shall implement and maintain industry standard administrative, physical and technical safeguards designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any PII as further described in Exhibit A - Security Addendum.
Sublicensing and Engagement of Subcontractors and Affiliates.

Dealer acknowledges and agrees that Inmar Intelligence Automotive may engage subcontractors and grant sublicenses of the rights received by either of them pursuant to these Terms, or as otherwise authorized by Dealer from time to time. Specifically, Dealer agrees that Inmar Intelligence Automotive may delegate responsibilities to its Affiliates, engage any such Affiliates as subcontractors, and sublicense to any such Affiliate any licenses or other rights received pursuant to these Terms, provided that Inmar Intelligence Automotive agrees to cause any such Affiliate, as applicable, to comply with applicable requirements of these Terms, and shall remain responsible for the acts and omissions of its Affiliates as if those acts and omissions were its own.
Confidentiality.

The Parties shall each keep confidential any Confidential Information of the other Party (the party disclosing Confidential Information is referred to herein as "Disclosing Party" and the Party receiving such Confidential Information is referred to herein as the "Receiving Party"), except that each Party may disclose Confidential Information to its professional advisors and those persons who need to know such Confidential Information in connection with providing the Services, provided such parties are instructed to maintain the confidentiality of the Confidential Information. Each Receiving Party agrees to use the Confidential Information of the Disclosing Party only in connection with the Receiving Party’s performance pursuant to these Terms and will not disclose such Confidential Information, except as otherwise permitted by these Terms or with the prior written consent of the Disclosing Party. For purposes of these Terms, the term "Confidential Information" will mean proprietary and confidential information belonging to a Disclosing Party, including, without limitation, all documentation, specifications, surveys, design concepts, trade secrets, internal reports and communications; sales information, marketing information and promotional plans; the fees for the Services; marketing techniques, marketing plans, mailing lists, purchasing information, price lists, pricing policies, quoting procedures, financial information, Dealer names, Dealer Data, pricing strategies, and other materials or information relating to the manner in which such Disclosing Party does business; and any other materials or information related to the business or activities of such Disclosing Party which are not generally known to others engaged in similar businesses or activities. Confidential information shall not include information which (a) was already known to the Receiving Party prior to the time that it is disclosed to the Receiving Party; (b) is in or has entered the public domain through no breach of these Terms by the Receiving Party; (c) has been rightfully received from a third-party without restriction or breach of any agreement; (d) has been approved for release by the Disclosing Party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the Disclosing Party has been given reasonable notice (to the extent legally permissible) of the pendency of such an order and the opportunity to contest it. Subject to Section 5(c), each Party shall promptly, as of the termination or expiration of these Terms and upon request of the other Party, return to the other Party or destroy any such Confidential Information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof). For the avoidance of doubt, any suggestions, comments or other feedback provided by Dealer to Inmar Intelligence Automotive with respect to the Services (collectively, "Feedback") will constitute Confidential Information of Inmar Intelligence Automotive. Inmar Intelligence Automotive will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback in a manner, without obligation or restriction of any kind.
Representations & Warranties; Disclaimer of Warranties.
1. Each Party hereby represents and warrants that: (i) it is duly organized and validly existing under applicable law; (ii) it has the requisite power and authority to enter into, execute and deliver an Order Form, and to consummate the transactions contemplated by an Order Form in accordance with its terms; (iii) neither the execution of an Order Form, the performance of its obligations, nor the grant or exercise of the rights and licenses herein will conflict with or result in a breach or violation of any of the terms or provisions of any agreement it may have with any other party; and, (iv) it will comply with all applicable federal, state and local laws in the performance of its obligations. Dealer represents and warrants that it has provided, and will continue to provide, adequate notices, and that it has obtained, and will continue to obtain, the necessary permissions and consents required to enable Inmar Intelligence Automotive to process all End Customer data to provide the Services or as permitted by these Terms and the Security Addendum.
2. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, INMAR INTELLIGENCE AUTOMOTIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED BY IT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT, THAT SUCH SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, THE SERVICES PROVIDED BY INMAR INTELLIGENCE AUTOMOTIVE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. IN NO EVENT WILL INMAR INTELLIGENCE AUTOMOTIVE BE LIABLE TO DEALER FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, DATA, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY INMAR INTELLIGENCE AUTOMOTIVE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.
Limitations of Liability.

Notwithstanding anything to the contrary in these Terms or any other agreement between the Parties, the entire liability of Inmar Intelligence Automotive for, and Dealer’s exclusive remedy for damages from, any matter or cause related to or arising out of these Terms, regardless of the form of action, whether in contract, tort, indemnity or otherwise, will not in any event exceed the amount of fees actually paid by Dealer to Inmar Intelligence Automotive in the prior twelve (12) month period.
Indemnification.
1. Except as limited herein, each Party (the "Indemnitor") agrees to defend, indemnify, and hold harmless the other Party and its officers, directors, and employees (the "Indemnitee") from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees), judgments, and liabilities (collectively, "Expenses") that are made against or incurred by the Indemnitee in connection with a third party claim and that arise out of or relate to any of the following: (i) acts or omissions of the Indemnitor in the performance of these Terms that constitute gross negligence or willful misconduct on the part of the Indemnitor, and (ii) Indemnitor’s breach of any of its warranties, representations or obligations pursuant to these Terms.
2. Notwithstanding the provisions of Section 15(a), (i) Inmar Intelligence Automotive has no obligation to defend, indemnify or hold harmless Dealer from any matter described in Section 15(c) below for which Dealer has an indemnification obligation, and (ii) no Party has any obligation to indemnify the other Party for negligence.
3. Dealer agrees to defend, indemnify, and hold harmless Inmar Intelligence Automotive and its officers, directors, and employees from and against any and all Claims that arise out of or relate to any Creative Deliverables, including their creation, use or distribution.
4. The indemnification set forth in this Section is conditioned upon (a) the Indemnitee providing the Indemnitor written notice of any claim or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, (b) the Indemnitee providing reasonable assistance and cooperation to enable the Indemnitor to defend the action or claim hereunder, and (c) the Indemnitee refraining from making prejudicial statements associated with such claim without the prior written consent of the Indemnitor.
5. Each Indemnitee has the right, at its own expense, to participate in the conduct of the defense of any matter with legal counsel chosen by the Indemnitee.
6. The Indemnitor will not enter into any settlement, or make any settlement offer, without the prior written approval of the Indemnitee. The Indemnitee shall not unreasonably withhold approval of a settlement or settlement offer if it requires only that the Indemnitor make a monetary payment, without any other obligations, undertakings, admissions, conditions or other provisions of any kind whatsoever. Each Party shall be entitled to give or withhold approval for itself and its officers, directors, and employees with respect to any proposed settlement or offer of settlement.
Default.

Any breach that is not cured within thirty (30) days of receipt of written notice from the non-breaching Party will constitute default by the breaching Party. Notwithstanding the foregoing, the failure to pay any amount set forth in Section 6 when due will constitute default by the non-paying Party. Insolvency, receivership, bankruptcy, or any similar proceeding initiated against either Party and not dismissed, contested or discharged within thirty (30) days will constitute default by such Party.
Notices.

Any notice required by these Terms will be sent to the applicable Party, to the address of record set forth on the Order Form, or to such other contact address, as may be provided in writing by a Party hereunder. Additionally, as to Inmar Intelligence Automotive, a copy shall be sent to: Inmar, Inc., One West Fourth Street, Suite 500, Winston-Salem, North Carolina 27101, with copy to General Counsel.
Miscellaneous.
1. Entire Agreement/Amendment. These Terms plus the signed Order Form shall constitute the Agreement between the Parties with respect to the subject matter hereunder. No amendment or modification to the Agreement shall be valid unless in writing and signed by the duly authorized representative(s) of all Parties.
2. Force Majeure. A Party shall not be considered in default or liable for fees, costs and/or damages, for any failure to perform any obligation due to causes beyond its control including, without limitation, industrial disputes, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including, without limitation, quarantine or other employee restrictions, regardless of whether such an event is officially declared to be an epidemic or the like by the relevant authoritative body(ies), acts of God, war, civil unrest, acts of terror or vandalism, or other causes beyond its reasonable control (each a "Force Majeure Event"); provided, however, any such Force Majeure Event will not excuse any payment obligations for Service Fees. Each Party will promptly notify the other Party of the occurrence of any Force Majeure Event that may affect its performance.
3. Governing Law. This Agreement shall be deemed to have been executed in Winston-Salem, Forsyth County, North Carolina and shall be governed by and construed in accordance with the laws of the State of North Carolina, without reference to the conflict of law rules of such state. The Parties irrevocably agree that any legal action or proceeding with respect to this Agreement shall be brought exclusively in the state or federal courts located in Forsyth County, North Carolina, and further agree to submit to the exclusive jurisdiction and venue of such courts.
4. Severability. If any term or condition of these Terms is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of these Terms, unless enforcing the balance of these Terms would deprive either Party of a fundamental benefit of its bargain.
5. Relationship. Inmar Intelligence Automotive shall perform its obligations pursuant to these Terms as an independent contractor. Nothing contained herein shall place the Parties in the relationship of partners, joint venturers, principal-agent, or employer-employee nor shall any Party have any right to obligate or bind the other Party in any manner whatsoever.
6. Waiver. Failure of any Party to enforce a specific provision of these Terms shall not constitute waiver of such provision or of any other provision of these Terms. No waiver of any of the provisions of these Terms shall be deemed to be or shall constitute a waiver of any other provision of these Terms, whether or not similar, nor shall any waiver by any Party of any default hereunder constitute a waiver of subsequent defaults of the same or different kind. No waiver of any provision of these Terms shall be binding on the Parties hereto unless it is executed in writing by the Party making the waiver.
7. Reduction of Statute of Limitation. No action arising out of these Terms may be brought by any Party more than one (1) year after the date on which the cause of action has accrued.
8. Assignment. Except as specifically permitted herein, Dealer may not assign these Terms without the prior written consent of Inmar Intelligence Automotive such consent not to be unreasonably withheld. Any assignment without such consent shall be void upon written notice.
9. Survival. The Parties’ obligations under Section 6 (Fees and Payments), Section 7 (Deliverables, Intellectual Property and Data), Section 8 (Limited Trademark Licenses), Section 10 (Privacy; Security), Section 12 (Confidentiality), Section 13 (Disclaimer of Warranties), Section 14 (Limitations of Liability), Section 15 (Indemnification), and this Section 18 (Miscellaneous), shall each survive the termination of these Terms.

Exhibit A: Security Addendum

This Security Addendum ("Addendum") specifies certain data protection obligations of the Parties under these Terms.

Additional Defined Words and Phrases.
1. "Data Breach" means a breach of Inmar Intelligence Automotive’s security controls that leads to the unauthorized acquisition of or access to End Customer PII Processed by Inmar Intelligence Automotive.
2. "Data Protection Laws" means all data protection and privacy laws applicable to the Processing of End Customer PII.
3. "Process," for the purpose of this Security Addendum, means any operation or set of operations that are performed on End Customer PII or on sets of End Customer PII, whether or not by automated means.
4. "Subcontractor" means any provider of services engaged by Inmar Intelligence Automotive to process End Customer PII in order to enable Inmar Intelligence Automotive to provide the Services.
Roles and Responsibilities.
The Parties agree that they each shall comply with their respective obligations under Data Protection Laws in respect of their Processing of End Customer PII. Dealer represents that it has provided notice and obtained all consents and rights necessary under Data Protection Laws for Inmar Intelligence Automotive to Process End Customer PII and provide the products and Services pursuant to these Terms. Inmar Intelligence Automotive shall Process End Customer PII only as set forth in these Terms or as permitted by applicable law. Dealer acknowledges that Inmar Intelligence Automotive shall have a right to Process End Customer PII in order to provide Services, fulfill their obligations under these Terms, as otherwise agreed upon in writing by the Parties, and for legitimate purposes relating to the operation, support and/or use of the Services such as billing, account management, technical support, product development, and sales and marketing.
Compliance with Laws.
Inmar Intelligence Automotive will comply with Data Protection Laws applicable to Inmar Intelligence Automotive’s Processing of End Customer PII on behalf of Client as part of the Services.
Confidentiality of Data Processing.
Inmar Intelligence Automotive shall ensure that any person who is authorized by Inmar Intelligence Automotive to Process End Customer PII (including its Affiliates, employees, agents, and subcontractors) shall be under an appropriate obligation of confidentiality.
Data Security.
Each Party shall take appropriate technical and organizational measures against unauthorized or unlawful Processing of End Customer PII or its accidental loss, destruction, or damage. Inmar Intelligence Automotive shall implement and maintain commercially reasonable technical and organizational security measures designed to protect End Customer PII from Data Breaches, to help ensure the ongoing confidentiality, integrity, and availability of the End Customer PII and Processing systems, in accordance with Inmar Intelligence Automotive security standards, including, as appropriate, the measures required by Data Protection Laws. Notwithstanding the above, Dealer agrees that it is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of End Customer PII when in transit and at rest, and taking any appropriate steps to securely encrypt or backup End Customer PII, as well as complying with any Dealer obligations outlined in these Terms.
Data Breach Response.
Unless prohibited by applicable law, legal process, a governmental entity, or a regulator, and subject to any delay or other restriction requested by law enforcement or other regulators, Inmar Intelligence Automotive shall notify Dealer without undue delay and, where feasible, no later than seventy-two (72) hours after becoming aware of any confirmed Data Breach. Inmar Intelligence Automotive shall make reasonable efforts to identify the cause of the Data Breach and shall undertake such steps to remediate the cause of such Data Breach. Inmar Intelligence Automotive shall provide information related to the Data Breach to Dealer in a timely fashion and as reasonably necessary for Dealer to maintain compliance with Data Protection Laws. The obligations herein shall not apply to incidents that are caused by Dealer, including Dealer’s Affiliates, employees, subcontractors, or agents.
Information Security Program.
Inmar Intelligence Automotive has implemented and maintains a written information security program. Inmar Intelligence Automotive’s information security program includes commercially reasonable technical, organizational, and administrative security measures designed to protect End Customer PII from unauthorized or unlawful destruction, loss, alteration, disclosure, or access.
Data Use Restriction.
Inmar Intelligence Automotive will only retain, use, or disclose End Customer PII to perform the Services under this Agreement or as otherwise permitted by applicable laws and regulations or these Terms. Inmar Intelligence Automotive is prohibited from selling End Customer PII.
Notice of Process.
In the event Inmar Intelligence Automotive receives a governmental or other regulatory request for, or legal process requesting, any End Customer PII, Inmar Intelligence Automotive shall notify Client of such request as soon as reasonably practicable unless prohibited by applicable law, legal process, a government entity, or a regulator.
Data Deletion.
Upon expiration or termination of the Agreement, Inmar Intelligence Automotive shall, to the extent reasonably feasible, destroy all End Customer PII in its possession. Upon Client’s request, Inmar Intelligence Automotive shall confirm compliance with this section. Notwithstanding the foregoing, Inmar Intelligence Automotive may retain End Customer PII following the termination of the Agreement and this Addendum if (i) Inmar Intelligence Automotive is required by applicable law to retain End Customer PII, (ii) Inmar Intelligence Automotive must retain End Customer PII for limited operational or compliance purposes, (iii) End Customer PII has been archived on back-up systems, or (iv) destruction is otherwise infeasible, in which case Inmar Intelligence Automotive shall maintain the End Customer PII securely and limit processing to the purposes that prevent deletion of the End Customer PII.
Subcontractors.
Inmar Intelligence Automotive shall be responsible for any acts, omissions, or Services provided by any subcontractor or consultant that Inmar Intelligence Automotive utilizes to perform any portion of the Services.
Termination.
This Addendum shall terminate at the later of the expiration or termination of the Agreement or the deletion of all End Customer PII.

SMARTPIXL ADDENDUM

To the extent any Order Form includes support for SmartPIXL software, as defined below, this Addendum will apply.

This SmartPIXL Master License Agreement (this "Agreement"), effective as of 1-17-22 (the "Effective Date"), is a binding agreement by and between M1 Data & Analytics, LLC, a Florida limited liability company d/b/a SmartPIXL, LLC (together with its subsidiaries, affiliates, officers, directors, agents, representatives and assigns referred to as "Licensor" or "Company") and Inmar Intelligence Automotive, LLC a Delaware limited liability company (together with its subsidiaries, affiliates, officers, directors, agents, Clients, representatives and assigns referred to as "END USER" or "you") (Licensor and END USER each individually referred to as a "Party" and collectively herein referred to as the "Parties"). This Agreement governs your use of the Software.

WHEREAS, Licensor desires to license the Software to END USER; and

WHEREAS, END USER desires to obtain a license to use the Software for its business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

COMPANY PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT END USER ACCEPTS AND COMPLIES WITH THEM. BY SIGNING THE AGREEMENT, END USER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT END USER IS LEGALLY BOUND BY ITS TERMS. IF END USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, COMPANY WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO END USER AND END USER MUST NOT, AND SHALL HAVE NO RIGHTS TO DOWNLOAD, INSTALL, OR OTHERWISE UTILIZE THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR END USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT END USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF COMPANY’S SOFTWARE.

Definitions. For purposes of this Agreement, the following terms have the following meanings:
- "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
- "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or by contract.
- "Agreement" has the meaning set forth in the preamble and shall include any separate license agreement, Order Form, Statement of Work, or Documentation accompanying or related to END USER’s license of the Software.
- "Authorized Users" means those persons authorized to use the Software pursuant to the license granted under the Agreement, including Client(s).
- "Business Day" means a day other than a Saturday, Sunday, or other day on which commercial banks in Fort Lauderdale, Florida are authorized or required by Law to be closed for business.
- "Client" means a business customer of End User.
- "Client Sites" means, to the extent applicable, websites managed by or for Client and websites and customer portals provided by End User to and for the benefit of Client.
- "Confidential Information" has the meaning set forth in Section 9.
- "Documentation" means user manuals, technical manuals, and any other materials provided by COMPANY, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
- "END USER" has the meaning set forth in the preamble.
- "End User Platform" means End User’s proprietary technology platform and/or websites into which Software shall be integrated.
- "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- "Laws" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
- "License and Support Fees" means the license and support fees, including all taxes thereon, paid or required to be paid by END USER for the license granted under the Agreement, as set forth on an applicable Statement of Work.
- "Statement of Work" means, to the extent one is utilized by COMPANY, the order form filled out and submitted by or on behalf of END USER, and accepted by COMPANY, for END USER’s license of the Software granted under the Agreement.
- "Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, or other entity.
- "Software" means the SmartPIXL software program for which END USER is obtaining a license, as expressly set forth herein or a Statement of Work which is incorporated herein by reference.
- "Service" means the services provided by Company as further set forth in a Statement of Work.
- "Term" has the meaning set forth in Section 11.
- "Third Party" means any Person other than END USER or COMPANY.
- "Update" has the meaning set forth in Section 7(b).
License Grant and Scope. Subject to and conditioned upon END USER’s payment of the License Fees and END USER’s strict compliance with all terms and conditions set forth in this Agreement, COMPANY hereby grants to END USER a non-exclusive, non-transferable, non-sublicensable (except as expressly set forth in the Agreement), limited license during the Term to use, solely by and through END USER or END USER’s Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in the Agreement. This license grants END USER the right, exercisable solely by and through END USER or END USER’s Authorized Users, to:
1. Download and/or install in accordance with the Documentation and based upon END USER’s purchase of a network license, copy(ies) of the Software on END USER’s Platform and/or Client Sites. Except as permitted under this Agreement, and unless otherwise authorized by COMPANY in writing, END USER shall not make copies of the Software for any purpose, nor shall END USER permit any Authorized User or Client to make copies of or adding, removing or amending any of the Software’s underlying code for any purpose. END USER shall not, and shall not allow any Person to, install or use any such copy or amended Software code other than if and for so long as said copy installed in accordance with the preceding sentence is inoperable and, provided, further, that END USER uninstalls and otherwise deletes such inoperable copy(ies). TO the extent any are created, whether approved by COMPANY or not, all copies of the Software made by the END USER:
  1. will be the exclusive property of the COMPANY;
  2. will be subject to the terms and conditions of the Agreement; and
  3. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
2. Use and run the Software as properly installed in accordance with the Agreement and the Documentation, solely as set forth in the Documentation therein.
3. Download or otherwise make any copies of the Documentation, as permitted in writing by COMPANY, and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by END USER:
  1. will be the exclusive property of COMPANY;
  2. will be subject to the terms and conditions of this Agreement; and
  3. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
4. Install Software on Client Sites; END USER shall provide COMPANY with a report in a format reasonably acceptable to COMPANY detailing installation on each Client Site and shall provide such report within seven (7) days following such installation.
END USER is responsible for notifying COMPANY if it, or any of its Authorized Users or Clients, becomes aware of any unauthorized use of or access to the Services by way of END USER’s (or as the case may be Authorized Users’ or Clients’) password or account associated with the Services. END USER understands and agrees that it may reasonably be required to provide information to COMPANY to investigate and correct such unauthorized access. COMPANY will not be liable for any loss, damages, liability, expenses or attorneys’ fees that END USER may incur as a result of someone else using its, its Authorized Users’, or its Clients’ password(s) or account associated with the Services, either with or without END USER’s knowledge and/or authorization, and regardless of whether END USER has or has not advised COMPANY of such unauthorized use. END USER shall be liable for losses, damages, liability, expenses and attorneys’ fees incurred by COMPANY or a third party due to the use of END USER, END USER’s Authorized Users’ or Clients’ account.
Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than COMPANY and that are provided to END USER on END USER terms that are in addition to and/or different from those contained in the Agreement ("Third-Party Licenses"). A list of all materials, if any such exist, included in the Software and provided under Third-Party Licenses can be provided upon written request to COMPANY. END USER is bound by and shall comply with all Third-Party Licenses of which it has been made aware. Any breach by END USER or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
Use Restrictions. Except as otherwise provided for in this Agreement, END USER shall not, and shall require its Authorized Users not to, directly or indirectly:
1. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
2. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of END USER, with access to or use of the Software or Documentation;
3. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
4. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs, platforms, or software;
5. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof, or to otherwise misuse the Software in any manner not expressly authorized by the COMPANY or provided for in the Documentation;
6. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
7. copy the Software or Documentation, in whole or in part;
8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
9. use the Software or Documentation in any manner for which it is not intended pursuant to the Agreement, including but not limited to its use in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
  1. power generation systems;
  2. aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
  3. safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
  4. military or aerospace applications, weapons systems, or environments;
10. bypass or breach any security device or protection used for or contained in the Software or Documentation;
11. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, copyright, patent, terms of the Documentation, warranties, disclaimers, or other Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation;
12. use the Software or Documentation in violation of any Laws; or
13. use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to COMPANY’s detriment or commercial disadvantage.
Responsibility for Use of Software. END USER is responsible and liable for all uses of the Software and Documentation through access thereto provided by END USER, directly or indirectly. Specifically, and without limiting the generality of the foregoing, END USER is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom END USER, or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement. END USER is responsible for obtaining all necessary and/or required consumer approvals, opt-ins, opt-outs; as well as providing or posting all necessary and/or required notices in compliance with the Agreement and any applicable terms of service for the Software and Documentation.
Security and Compliance Measures.
1. The Software may contain/contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is otherwise prohibited under the Agreement. END USER shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features, or in any effort to circumvent the requirements of the Agreement.
2. During the Term, COMPANY may, in COMPANY’s sole discretion, audit END USER’s use of the Software to ensure END USER’s compliance with the Agreement. COMPANY also may, in its sole discretion, audit END USER’s systems within six (6) months after the end of the Term to ensure END USER has ceased the use of the Software and removed all copies of the Software from such systems as required hereunder. The END USER shall fully cooperate with COMPANY’s personnel conducting such audits and provide all reasonable access requested by the COMPANY to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information related to its, including its Authorized Users’ or Clients’ use of the Software. COMPANY may conduct such audits only during END USER’s normal business hours and in a manner that does not unreasonably interfere with the END USER’s business operations. Such audits shall be at the sole cost and expense of COMPANY, except in the event that such audit demonstrates that END USER has not ceased using the Software; in such case END USER may, in COMPANY’s sole discretion, be deemed responsible for such audit costs.
3. On COMPANY’s written request, END USER shall conduct a review of its and its Authorized Users’ use the Software and certify to COMPANY in a written instrument signed by an officer of END USER that it is in full compliance with the Agreement or, if END USER discovers any noncompliance:
  1. END USER shall immediately remedy such noncompliance and provide COMPANY with written notice thereof. END USER shall provide COMPANY with all access and assistance as COMPANY requests to further evaluate and remedy such noncompliance.
  2. If END USER’s use of the Software exceeds the number of copies or Authorized Users permitted under the license, COMPANY shall have the remedies set forth in Section 6(e).
4. END USER acknowledges, consents, and agrees that COMPANY may access, preserve, and disclose any information END USER submits, or which COMPANY obtains as a result of the use of the Software if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by this Agreement or reasonably necessary or appropriate for any of the following reasons:
  1. to comply with legal process;
  2. to enforce any or all of the Service Agreements, including investigation of potential violations thereof;
  3. to respond to claims that any content violates the rights of third parties;
  4. to respond to END USER or an Authorized User’s requests for customer service; and/or
  5. to protect the rights, property, or personal safety of COMPANY, its agents and affiliates, its users, and the public. This includes exchanging information with other companies and organizations for fraud protection, and spam/malware prevention, and similar purposes.
5. If any of the measures taken or implemented under this Section 6 determines that the END USER or an Authorized User or Client’s use of the Software exceeds or exceeded the use permitted by the Agreement, then:
  1. END USER shall, within fifteen (15) days following the date of COMPANY’s written notification thereof, pay to COMPANY the retroactive License Fees for such excess use and, obtain and pay for a valid license to bring END USER’s use into compliance with this Agreement. In determining the END USER Fee payable pursuant to the foregoing, (x) unless END USER can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of the Agreement or, if later, the completion date of any audit previously conducted by COMPANY hereunder and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which END USER may have been entitled had such use been properly licensed prior to its commencement.
  2. Except in the case of a discrepancy in the number of licenses utilized by END USER (including its Authorized Users or Clients) or installations of the Software on Client Sites, if the use violates the terms of the license permitted by the Agreement, COMPANY shall also have the right, in its sole discretion, to terminate the Agreement and the license granted hereunder, effective immediately upon written notice to END USER.
COMPANY’s remedies set forth in this Section 6(e) are cumulative and are in addition to, and not in lieu of, all other remedies the COMPANY may have at law or in equity, whether under this Agreement or otherwise.
Maintenance and Support.
1. Subject to Section 7(c), the license granted hereunder entitles END USER to the software maintenance and support services described in the Agreement. Such support services shall be provided on the terms and conditions set forth in the Agreement.
2. Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches, and other error corrections (collectively, "Updates") as COMPANY makes generally available free of charge to all END USERs of the Software then entitled to maintenance and support services. COMPANY may develop and provide Updates in its sole discretion, and END USER agrees that COMPANY has no obligation to develop any Updates at all or for particular issues. END USER further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of the Agreement. END USER acknowledges that COMPANY may provide some or all Updates via download from a website designated by COMPANY and that END USER’s receipt thereof will require an internet connection, which connection is END USER’s sole responsibility. COMPANY has no obligation to provide Updates via any other media unless provided for elsewhere in the Agreement. Maintenance and support services do not include any new version or new release of the Software that COMPANY may issue as a separate or new product, and COMPANY may determine whether any issuance qualifies as a new version, new release, or Update in its sole and reasonable discretion.
3. COMPANY has no obligation to provide maintenance and support services, including Updates:
  1. for any but the most recent version or release of the Software;
  2. for any copy of Software for which all previously issued Updates have not been installed;
  3. if END USER is in breach under this Agreement; or
  4. for any Software that has been modified other than by or with the authorization of COMPANY, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by COMPANY in writing.
Collection and Use of Information.
1. END USER acknowledges that COMPANY may, directly or indirectly through the services of Third Parties, collect and store information, which may include but is not limited to foundational internet data such as browser information, device information, server access data, and non-PII data elements utilized for the functionality of and regarding the use of the Software by END USER and/or END USER’s Authorized Users, Clients, or their customers and consumers; and about equipment, network(s), or web sites on which the Software is installed or through which it otherwise is accessed and used, through:
  1. the provision of services associated with or related to the Software;
  2. the provision of maintenance and support services; and
  3. security measures included in the Software as described in the Agreement.
2. END USER agrees that the COMPANY may use such information for any lawful purpose, including but not limited to the provisioning services during the Term of the Agreement, which may include but not be limited to the following purposes:
  1. Maintaining and improving the performance, operation, and functionality of the Software or developing Updates; and
  2. verifying END USER’s compliance with the terms of the Agreement and enforcing the COMPANY’s rights, including all Intellectual Property Rights in and to the Software.
3. Unless otherwise directed in writing by COMPANY, END USER shall incorporate the following statement and direct hyperlink into END USER’s Privacy Policy or Terms of Use for END USER’s respective web site:
  "This site is being monitored by one or more third-party monitoring software(s), and may capture information about your visit that will help us improve the quality of our service. You may opt-out from the data that SmartPiXL is collecting on your visit through a universal consumer options page located at https://smart-pixl.com/Unsub/unsub.html."
4. Company has implemented and will maintain administrative, technical, and physical safeguards to protect the security and confidentiality of the information obtained as a result of END USER’s (or any Authorized User or Client’s) use of the Software, or as required by applicable Laws. Company represents and warrants that, with respect to any of the information obtained as a result of END USER’s (or any Authorized User or Client’s) use of the Software, it shall comply with all requirements under Laws for maintaining the security and/or confidentiality of such information.
Confidential Information.
1. In connection with this Agreement, each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Subject to Section 9(b), "Confidential Information" means all confidential, proprietary and trade secret information of Disclosing Party, whether written, oral, electronic or other form, including but not limited to, information and facts concerning business plans, customers, future customers, suppliers, licensors, licensees, partners, investors, affiliates or others, training methods and materials, financial information, accounting information, sales prospects and/or figures, client lists, inventions, any and all other information, of whatever type and in whatever medium, including proprietary processes, methodologies and technologies and including, without limitation all data, ideas, processes, models, patterns, developments, proprietary intellectual property, trade secrets, inventions, or any procedures, manufacturing, engineering, creations, and improvements of either Party, regardless of the date on which it may have first been disclosed, or any other scientific, technical or trade secrets of Disclosing Party or of any third party or independent consultant of Disclosing Party provided to Receiving Party under a condition of confidentiality. Confidential Information shall include information marked as confidential or proprietary or that due to the nature of its subject matter or the circumstances surrounding its disclosure, which Receiving Party reasonably should understand to be confidential or proprietary. Without limiting the foregoing: (i) the Software, Documentation, and this Agreement, including any attachments or Statement of Work, are the Confidential Information of COMPANY.
2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party's (including Receiving Party’s representatives, officers, directors, employees, agents, and assigns) noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that is under no obligation to maintain its confidentiality; (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information; or (v) Is disclosed under operation of law, except that the Receiving Party will disclose only such information as is legally required and will provide the Disclosing Party prompt notice of the applicable subpoena or court order such that Disclosing Party shall have the opportunity to seek a protective order.
3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
  1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
  2. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own Confidential Information and in no event less than a reasonable degree of care; and
  3. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure or to recover the disclosed Confidential Information.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information will continue until such time, if ever, as such Confidential Information ceases to qualify as Confidential Information other than as a result of any act or omission of the Receiving Party.
Intellectual Property Rights; Confidentiality.
1. END USER acknowledges and agrees that the Software and Documentation are the intellectual property of COMPANY and are provided under license, and not sold, to END USER. END USER does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. COMPANY reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the END USER in the Agreement. END USER shall safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. END USER shall promptly notify COMPANY in writing if END USER becomes aware of any infringement, misappropriation, theft, misuse, or unauthorized access of the COMPANY’s Intellectual Property Rights in the Software and fully cooperate with COMPANY in any legal action taken by COMPANY to enforce its Intellectual Property Rights.
PAYMENT. All License Fees and Support Fees are set forth on Exhibit A and are payable when due in the manner set forth herein and are non-refundable, except as may be expressly set forth in the Agreement or as otherwise approved in writing by COMPANY. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full. End User shall pay all fees due within thirty (30) days after receipt of an invoice.
Term and Termination.
1. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the "Term").
2. END USER may terminate this Agreement by ceasing to use, destroying all copies of the Software and Documentation, and upon COMPANY’s request provide written documentation attesting to said destruction.
3. Either party may terminate this Agreement, effective upon written notice to the other party, if such other party, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15) days after written notice thereof.
4. Either party may terminate this Agreement, effective immediately, if the other party files, or has filed against it and not dismissed within thirty (30) days, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
5. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and END USER shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect END USER’s obligation to pay all END USER Fees and Support Fees that may have become due before such expiration or termination, or entitle END USER to any refund, in each case except as set forth herein.
Representations, Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
1. Solely with respect to Software for which COMPANY receives a License Fee, COMPANY warrants that, during the Term the Software will (i) substantially contain the functionality described in the Documentation, and when properly installed, embedded, uploaded, utilized, and/or operated in accordance with, the Documentation, will substantially perform in accordance therewith; and (ii) not knowingly infringe upon the intellectual property and/or proprietary rights of any third-party.
  1. THE FOREGOING WARRANTIES DO NOT APPLY, AND COMPANY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS, INCLUDING BUT NOT LIMITED TO ANY INTERNET SERVICE PROVIDERS, WEB SITE DESIGNS, OR ANY REQUIREMENTS OR FUNCTIONALITY ASSOCIATED WITH OR RELATED TO END USER’S WEB SITE.
2. The warranties set forth in Section 13(a) will not apply and will become null and void if END USER breaches any provision of Sections 2, 4, 6 and 9 of the Agreement
3. Subject to Section 13(b) above, if, during the period specified in Section 13(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, COMPANY will, subject to END USER’s promptly notifying COMPANY in writing of such failure, at its sole option, either:
  The remedies set forth in this Section 13(c) are END USER’s sole remedies with respect to breaches of warranty under the Agreement.
  1. repair or replace the Software, provided that END USER provides COMPANY with all information COMPANY reasonably requests to resolve the reported failure, including sufficient information to enable the COMPANY to recreate such failure; or
  2. refund the License Fees paid for such Software from the date which END USER notifies COMPANY in writing of the Software’s failure, subject to END USER’s ceasing all use of and, if requested by COMPANY, returning to COMPANY all copies of the Software or providing written documentation attesting to the destruction of the Software.
4. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 13(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE COMPANIES AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE END USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
5. Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party, enforceable in accordance with its terms; and (c) it shall not otherwise violate any Laws, and refrain from taking any action which are intended to cause the other party to be in violation of any Laws.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
1. IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE COMPANIES OR SERVICE PROVIDERS, BE LIABLE TO END USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; AND IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. OTHER THAN FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL COMPANY’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE COMPANIES’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE COMPANY PURSUANT TO THE AGREEMENT FOR UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES RECEIVED FROM COMPANY PURSUANT TO THE AGREEMENT.
3. THE LIMITATIONS SET FORTH IN SECTION 14(a) AND SECTION 14(b) SHALL APPLY EVEN IF THE END USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Indemnification.
1. END USER agrees to indemnify, defend, and hold harmless COMPANY and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to END USER, an Authorized User, or a Client’s use or misuse of the Software and/or such Person’s breach of the Agreement, including but not limited to the content you submit or make available through the Software.
2. COMPANY agrees to indemnify, defend, and hold harmless END USER and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to COMPANY’s breach of the Agreement or resulting from any judicial determination that the Software infringes any third party intellectual property rights.
Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The END USER shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The END USER shall comply with all applicable federal, national, state, provincial, and local laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the United States.
Third-Party Links and Services. COMPANY is not responsible for the availability of any such external sites or resources provided by third-party websites or resources which access or links to are created through Clients’ Sites and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. END USER further acknowledges and agrees that COMPANY shall not be responsible or liable, directly or indirectly, and that COMPANY shall be indemnified, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. END USER, including END USER’s Authorized Users’ and Clients’ interactions with such third-parties will be governed by the third-parties’ own terms of service and privacy policies, and any other similar terms.
US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101, as amended. Accordingly, if the END USER is the US Government or any contractor therefor, END USER shall receive only those rights with respect to the Software and Documentation as are granted to all other COMPANYs under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, as amended, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government END USERs and their contractors.
MANDATORY ARBITRATION AND CLASS ACTION WAIVER.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
1. END USER agrees that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 19 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
2. Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If END USER has any dispute with COMPANY, END USER agrees that before taking any formal action, END USER will contact COMPANY and provide a brief, written description of the dispute and your contact information (including your username, if END USER’s dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with COMPANY, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
3. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in Section 19(e) below) subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including the formation, performance, and breach), the parties’ relationship with each other, and/or END USER’s use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Consumer Arbitration Rules. The AAA rules will govern payment of all arbitration fees. In no event shall any arbitration award against COMPANY exceed the total amount paid to COMPANY by END USER pursuant to the Agreements for up to twelve (12) months of the Services received from COMPANY pursuant to the Service Agreements. COMPANY does not waive or disclaim any rights it may have to seek its attorneys’ fees or costs associated with any arbitration brought pursuant to this Section 19.
4. The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Whether you are a resident of the United States or not, arbitration shall take place in Broward County, Florida, United States, unless you and we both agree to another location or telephonic arbitration. END USER and COMPANY agree to submit to the personal jurisdiction of any federal or state court in Broward County, Florida, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
5. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. END USER, INCLUDING ANY AUTHORIZED USER OR CLIENT, AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
6. Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its Intellectual Property Rights. Either party may also seek relief in small claims court in Broward County, Florida for disputes or claims within the scope of that court’s jurisdiction.
7. Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of this Agreement.

TERMS AND CONDITIONS FOR AUTOMOTIVE ECOMMERCE

Defined Words and Phrases.

Services.

Dealer Obligations.

Project Manager.

Term; Termination.

Fees and Payments.

Deliverables; Intellectual Property and Data.

Limited Trademark Licenses.

Platform Technologies.

Privacy; Security.

Sublicensing and Engagement of Subcontractors and Affiliates.

Confidentiality.

Representations & Warranties; Disclaimer of Warranties.

Limitations of Liability.

Indemnification.

Default.

Notices.

Miscellaneous.

Exhibit A: Security Addendum

SMARTPIXL ADDENDUM